THE 


TREATY  OF  WASHINGTON:. 


ITS 


NEGOTIATION,  EXECUTION, 
AND  THE  DISCUSSIONS  RELATING  THERETO. 


BY 

CALEB  CUSHING. 


UNIVERSITY 


NEW    YORK: 
HARPER   &    BROTHERS,    PUBLISHERS, 

FRANKLIN     SQUARE. 

1S73. 


Entered  according  to  Act  of  Congress,  in  the  year  1873,  by 

HARPER  &   BROTHERS, 
-^  ty  3  /y 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


INSCRIBED, 
IN  TESTIMONY  OF  PROFOUND  RESPECT, 

TO 

COUirr  FREDERIC  m«  OF  SA1ERAKO, 

MINISTER  OF  STATE, 
SENATOR.  OF  THE  KINGDOM  OF  ITALY. 


CONTENTS. 


PAGE 

CHAPTER  I.   INTRODUCTION. 9 

CHAPTER  II.   ALABAMA   CLAIMS 15 

/  Conduct  of  Great  Britain  toward  the  United  States  during  the  late 

Civil  War 15 

Negotiations  by  Mr.  Seward .  t 17 

Policy  of  President  Grant 18 

Overtures  by  Great  Britain 20 

Stipulations  respecting  the  Alabama  Claims 21 

Arrangements  of  Arbitration 26 

foThe  American  Case  . .  > .' -.30 

^Explanation  of  Objections  to  the  American  Case..^ 33 

Agitation  respecting  the  National  Claims 34 

Cause  of  this  Agitation 3D 

Discussion  between  the  two  Governments 42 

(  English  Misconception  of  American  Sentiment 48 

Attitude  of  the  American  Government 52 

Action  of  the  American  Agent  and  Counsel 55 

Presentation  of  Counter-Cases  . .  .  57 


vi  CONTENTS. 

PAGE 

^Negotiations  for  a  Supplemental  Treaty. 62 

,X  Presentation  of  Arguments  for  the  United  States G6 

\  Decision  of  the  Arbitrators  respecting  National  Losses GO 

Seat  of  the  Arbitration 74 

Count  Frederic  Sclopis 77 

Mr.  Stampfli 80 

Viscount  of  Itajuba 84 

Sir  Alexander  Cockburn 8G 

Mr.  Charles  Francis  Adams 93 

Secretary  of  the  Tribunal 94 

Agents  and  Counsel 94 

Efforts  of  the  British  Government  to  obtain  Eeargument 99 

Rules  concerning  the  Conferences  of  the  Tribunal ...  106 

Discussions  of  the  Tribunal 109 

Sir  Alexander  Cockburn's  Call  for  Reargument Ill 

A    ^Case  of  tlie  Florida  decided .' 114 

Special  Arguments  ordered  on  Certain  Points 117 

£       Case  of  the  Alabama  decided 118 

*  *    Case  of  the  Shenandoah  decided 120 

The  Special  Arguments 121 

Question  of  Damages 124 

Final  Judgment  of  the  Tribunal 125 

Announcement  of  the  Decision 12G 

'    Conduct  of  the  British  Arbitrator 128 


CONTEXTS.  vii 

PAGE 

Sir  Alexander  Cockburn's  Eeasons  for  Dissent 128 

Review  of  Sir  Alexander  Cockburn's  ''Reasons " 130 

Opinions  of  the  other  Arbitrators 149 

Review  of  the  Decision  of  the  Tribunal  on  National  Losses 153 

Decision  as  to  Private  Losses 159 

Effect  of  the  Award 164 

Validity  of  the  Award 167 

Filibuster  Objections 177 

Sale  of  Arms  not  affected  by  the  Treaty  or  the  Award 180 

Question  of  Supplies  of  Coal 180 

S    What  the  United  States  have  gained  by  the  Award 184 

CHAPTER  III.   MISCELLANEOUS  CLAIMS 1ST 

Treaty  Provisions 187 

Private  Claims  on  Governments 189 

Usefulness  of  Mixed  Commissions 193 

Other  Forms  of  Arbitration 195 

* 

Tendency  of  Reason  and  Justice  to  prevail  over  Force 197 

Theory  of  Arbitration 200 

Wisdom  of  the  present  Mixed  Commission 201 

CHAPTER  IV.  THE  NORTHWESTERN  BOUNDARY-LINE..  203 

Provisions  of  the  Treaty 203 

History  of  the  Question 205 

The  Award 221 


viii  CONTENTS. 

PAGE 

CHAPTER  V.  THE  FISHERIES 226 

History  of  the  Question ..- 226 

Provisions  of  the  Treaty  of  Washington 237 

Probable  Amount  of  Indemnity 239 

CHAPTER  VI.  COMMERCIAL  INTERCOURSE  AND  TRANS 
PORTATION. 241 

Treaty  Provisions 241 

Relation  of  the  British  Provinces  to  the  United  States...  .  247 


APPENDIX.—  THE  TREATY  OF  WASHINGTON. 257 

THE  DECISION  AND  A  WARD. ..  ,.275 


UNIVERSITY 


THE 

TREATY  OF  WASHINGTON 


CHAPTER  I. 
INTRODUCTION. 

THE  TREATY  OF  WASHINGTON,  whether  it  be  regard 
ed  in  the  light  of  its  general  spirit  and  object,  of  its 
particular  stipulations,  or  of  its  relation  to  the  high 
contracting  parties,  constitutes  one  of  the  most  nota 
ble  and  interesting  of  all  the  great  diplomatic  acts  of 
the  present  age. 

It  disposes,  in  forty-three  articles,  of  five  different 
subjects  of  controversy  between  Great  Britain  and 
the  United  States,  two  of  them  European  or  imperial, 
three  American  or  colonial,  and  some  of  them  of  such 
nature  as  most  imminently  to  imperil  the  precious 
peace  of  the  two  great  English-speaking  nations. 

Indeed,  several  of  these  objects  of  controversy  are 
questions  coeval  with  the  national  existence  of  the 
United  States,  and  which,  if  lost  sight  of  occasionally 
in  the  midst  of  other  pre-occupations  of  peace  or  war, 
yet  continually  came  to  the  surface  again  from  time 


10  THE  TREATY  OF  WASHINGTON. 

to  time  to  vex  and  disturb  the  good  understanding 
of  both  Governments.  Others  of  the  questions,  al 
though  of  more  modern  date,  incidents  of  our  late 
Civil  War,  were  all  the  more  irritating,  as  being  fresh 
wounds  to  the  sensibility  of  the  people  of  the  United 
States. 

If,  to  all  these  considerations,  be  added  the  fact  that 
negotiation  after  negotiation  respecting  these  ques 
tions  had  failed  to  resolve  them  in  a  satisfactory 
manner,  it  will  be  readily  seen  how  great  was  the 
diplomatic  triumph  achieved  by  the  Treaty  of  Wash 
ington. 

It  required  peculiar  inducements  and  agencies  to 
accomplish  this  great  result. 

Prominent  among  the  inducements  were  the  pacific 
spirit  of  the  President  of  the  United  States  and  the 
Queen  of  Great  Britain,  and  \ of  their  respective  Cabi 
nets,  and  the  sincere  and  heartfelt  desire  of  a  great 
majority  of  the  people  of  both  countries  that  no 
shadow  of  offense  should  be  allowed  any  longer  to 
linger  on  the  face  of  their  international  relations. 

Great  Britain,  it  is  but  just  to  her  to  say,  if  not  con 
fessedly  conscious  of  wrong,  yet,  as  being  the  party  to 
whom  wrong  was  imputed?  did  honorably  and  wisely 
make  the  decisive  advance  toward  reconciliation,  by 
consenting  to  dispatch  five  Commissioners  to  Wash 
ington,  there,  under  the  eye  of  the  President,  to  treat 
with  five  Commissioners  on  behalf  of  the  United 
States. 

Diplomatic  congresses  have  assembled  on  previous 
occasions  to  terminate  the  great  wars  of  Europe,  or 


INTRODUCTION.  H 

to  maintain  and  consolidate  peace  in  America.  And 
conferences,  like  those  of  Vienna,  of  Aix-la-Chapelle, 
of  Paris,  may  have  embraced  the  representation  and 
settled  the  interests  of  a  larger  number  of  nations;  but 
they  did  not  consist  of  higher  personages,  nor  did 
they  treat  of  larger  matters  than  did  the  conference 
of  Washington. 

On  the  part  of  the  United  States  were  five  persons, 
—Hamilton  Fish,  Kobert  C.  Schenck,  Samuel  Kelson, 
Ebenezer  Rockwood  Hoar,  and  George  H.Williams,— 
eminently  fit  representatives  of  the  diplomacy,  the 
bench,  the  bar,  ^nd  the  legislature  of  the  United 
States :  on  the  part  of  Great  Britain,  Earl  De  Grey 
and  Ripon,  President  of  the  Queen's  Council ;  Sir  Staf 
ford  Northcote,  ex-Minister  and  actual  Member  of  the 
House  of  Commons;  Sir  Edward  Thornton,  the  uni- 
versally  respected  British  Minister  at  Washington ; 
Sir  John  Macdonald,  the  able  and  eloquent  Premier  of  1 
the  Canadian  Dominion  ;  and,  in  revival  of  the  good 
old  time,  when  learning  was  equal  to  any  other  title 
of  public  honor,  the  Universities  in  the  person  of 
Professor  Mountague  Bernard. 

With  persons  of  such  distinction  and  character,  it 
was  morally  impossible  that  the  negotiation  should 
fail :  the  negotiators  were  bound  to  succeed.  Their 
reputations,  not  less  than  the  honor  of  their  respective 
countries,  were  at  stake.  The  circumstances  involved 
moral  coercion,  more  potent  than  physical  force.  The 
issues  of  peace  and  of  war  were  in  the  hands  of  those 
ten  personages.  They  were  to  illustrate  the  eternal 
truth  that,  out  of  the  differences  of  nations,  competent 


12  THE  TREATY  OF  WASHINGTON. 

statesmen  evolve  peace;  and  that  it  is  only  by  the 
incompetency  of  statesmen  of  one  side  or  the  other, — 
that  is,. their  ignorance,  their  passion,  their  prejudice, 
their  want  of  forecast,  or  their  willfully  aggressive 
ambition, — that  the  unspeakable  calamities  of  war  are 
ever  thrust  on  the  suffering  world.  Neither  Mr.  Fish 
nor  Earl  De  Grey,  nor  their  respective  associates, 
could  afford  to  take  on  their  consciences  the  respon 
sibility,  or  on  their  characters  the  shame,  of  the  non- 
success  on  this  occasion  of  a  last  effort  to  renovate 
and  re-establish  in  perpetuity  relations  of  cordial 
friendship  between  Great  Britain  and  the  United 
States.  And,  if  they  needed  other  impulse  to  right 
conclusion,  that  was  given  by  the  wise  and  firm  direc 
tion  of  the  President,  here  in  person,  and  of  the  Queen, 
here  in  effect  through  the  means  of  daily  telegraphic 
communication. 

Happily  for  the  peace  of  the  two  countries  and  for 
the  welfare  of  the  world,  the  negotiators  proved  equal 
to  the  emergency,  in  courage  as  well  as  in  statesman 
ship.  The  Government  and  the  people  of  Great  Brit 
ain  had  learned  to  regret  sincerely  the  occurrence  of 
the  acts  or  facts  which  had  given  such  deep  offense, 
and  which  had  done  such  serious  injury,  to  the  United 
States ;  and,  moreover,  the  Government  and  people  of 
this  country  had  come  to  desire,  with  equal  sincerity, 
that  some  honorable  solution  of  the  existing  difficul 
ties  might  be  found,  so  as  to  leave  room  for  the  un 
obstructed  action  here  of  the  prevailing  natural  tend 
ency  toward  unreserved  intellectual  and  commercial 
association  with  Great  Britain.  Material  interests, 


INTRODUCTION.  13 

social  sentiments,  incidental  circumstances,  all  invited 
both  nations  to  cordial  reunion. 

.  In  the  face  of  many  difficulties,  the  Commissioners, 
on  the  8th  of  May,  1871,  completed  a  treaty,  which 
received  the  prompt  approval  of  their  respective 
Governments;  which  has  passed  unscathed  through  . 
the  severest  ordeal  of  a  temporary  misunderstanding 
between  the  two  Governments  respecting  the  con 
struction  of  some  of  its  provisions;  which  has  already 
attained  the  dignity  of  a  monumental  act  in  the  esti 
mation  of  mankind ;  and  which  is  destined  to  occupy 
hereafter  a  lofty  place  in  the  history  of  the  diplomacy 
and  the  international  jurisprudence  of  Europe  and 
America. 

Coming  now  to  the  analysis  of  this  treaty,  we  find 
that  Articles  I.  to  XI.  inclusive  make  provisions  for 
the  settlement  by  arbitration  of  the  injuries  alleged 
to  have  been  suffered  by  the  United  States  in  conse- 1 
quence  of  the  fitting  out,  arming,  or  equipping,  in  the  I 
ports   of  Great  Britain,  of  Confederate   cruisers  to  » 
make  war  on  the  United  States. 

Articles  XII.  to  XVII.  inclusive  make  provision  to 
settle,  by  means  of  a  mixed  Commission,  all  claims  on 
either  side  for  injuries  by  either  Government  to  the  cit-  J 
izens  of  the  other  during  the  late  Civil  War,  other  than 
claims  growing  out  of  the  acts  of  Confederate  cruisers 
disposed  of  by  the  previous  articles  of  the  Treaty. 

Articles  XVIII.  to  XXV.  inclusive  contain  provi 
sions  for  the  permanent  regulation  of  the  coast  fish 
eries  on  the  Atlantic  shores  of  the  United  States  and 
of  the  British  Provinces  of  Quebec,  Xova  Scotia,  and 


14:  THE  TREATY  OF  WASHINGTON. 

New  Brunswick,  and  the  Colony  of  Prince  Edward's 
Island  [including  the  Colony  of  Newfoundland  by 
Article  XXXII.]. 

Articles  XXVI.  to  XXXIII.  inclusive  provide  for 
the  reciprocal  free  navigation  of  certain  rivers,  includ 
ing  the  River  St.  Lawrence ;  for  the  common  use  of 
certain  canals  in  the  Canadian  Dominion  and  in  the 
United  States ;  for  the  free  navigation  of  Lake  Mich 
igan  ;  for  reciprocal  free  transit  across  the  territory 
either  of  the  United  States  or  of  the  Canadian  Do 
minion,  as  the  case  may  be:  the  whole,  subject  to 
legislative  provisions  hereafter  to  be  enacted  by  the 
several  Governments. 

Articles  XXXIV.  to  XLII.  provide  for  determining 
by  arbitration  which  of  two  different  channels  be 
tween  Vancouver's  Island  and  the  main-land  consti 
tutes  the  true  boundary -line  in  that  region  of  the 
territories  of  the  United  States  and  Great  Britain. 

Each  of  these  five  distinct  classes  of  questions  will 
receive  separate  consideration. 


ALABAMA  CLAIMS.  15 


CHAPTER  II 

ALABAMA  CLAIMS. 

CONDUCT  OF  GREAT  BRITAIN  TOWARD  THE  UNITED  STATES 
DURING  THE  LATE  CIVIL  AVAR. 

AT  the  conclusion  of  the  Civil  War,  intense  feeling 
of  indignation  against  Great  Britain  pervaded  the 
minds  of  the  Government  and  Congress  of  the  United 
States,  and  of  the  people  of  those  of  the  States  which 
had  devoted  themselves  to  maintaining  in  arms  the 
integrity  of  the  Union  against  the  hostile  efforts  of 
the  Southern  Confederation. 

We  charged  and  we  believed  that  Great  Britain 
and  her  Colonies  had  been  the  arsenal,  the  navy-yard, 
and  the  treasury  of  the  Confederates. 

We  charged  and  we  believed  that  Confederate 
cruisers,  which  had  depredated  largely  on  our  ship 
ping  and  maritime  commerce,  never  could  have  taken 
and  never  held  the  sea,  but  for  the  partiality  and 
gross  negligence  of  the  British  Government. 

We  charged  and  we  believed  that  but  for  the  pre 
mature  recognition  of  the  belligerence  of  the  Confed 
erates  by  Great  Britain,  and  the  direct  aid  or  sup 
plies  which  were  subsequently  furnished  to  them  in 
British  ports,  the  insurrection  in  the  Southern  States 
never  would  have  assumed,  or  could  not  have  retained, 


16  THE  TKEATY  OF   WASHINGTON. 

those  gigantic  proportions,  which  served  to  render  it 
so  costly  of  blood  and  of  treasure  to  the  whole  Union, 
and  so  specially  disastrous  to  the  Southern  States 
themselves. 

We  charged  and  \ve  believed  that,  in  all  this,  Great 
Britain,  through  her  Government,  had  disregarded 
the  obligations  of  neutrality  imposed  on  her  by  the 
law  of  nations  to  such  manifest  degree  as  to  have  af 
forded  to  the  United  States  just  and  ample  cause  of 
war. 

The  United  States,  through  all  these  events,  with 
"William  H.  Seward,  as  Secretary  of  State,  and  Charles 
Francis  Adams,  Minister  at  London,  had  not  failed  to 
address  continual  remonstrances  to  the  British  Gov 
ernment,  demanding  reparation  for  past  wrong  and 
the  cessation  from  continuous  wrong:  which  remon 
strances  did,  in  fact,  at  length  awaken  the  British 
Government  to  greater  vigilance  in  the  discharge  of 
its  international  duties,  but  could  not  induce  it  to 
take  any  step  toward  reparation  so  long  as  Earl  Rus 
sell  [then  Lord  John  Russell],  by  whose  negligence  or 
misjudgment  the  injuries  had  happened,  remained  in 
charge  of  the  foreign  affairs  of  the  Government.  That 
statesman,  while,  on  more  than  one  occasion,  expressly 
admitting  the  wrong  done  to  the  United  States,  still 
persisted,  with  singular  obtuseness  or  narrowness  of 
rnind,  in  maintaining  that  the  honor  of  England  would 
not  permit  her  to  make  any  reparation  to  the  United 
States. 

Never,  in  the  history  of  nations,  has  an  occasion  ex 
isted  where  a  powerful  people,  smarting  under  the 


ALABAMA   CLAIMS.  17 

consciousness  of  injury,  manifested  greater  magnanim 
ity  than  was  displayed  in  that  emergency  by  the 
United  States. 

We  had  on  the  sea  hundreds  of  ships  of  war  or  of 
transport ;  we  had  on  land  hundreds  of  thousands  of 
veteran  soldiers  under  arms ;  we  had  officers  of  land 
and  sea,  the  combatants  in  a  hundred  battles :  all  this 
vast  force  of  war  was  in  a  condition  to  be  launched 
as  a  thunderbolt  at  any  enemy;  and,  in  the  present 
case,  the  possessions  of  that  enemy,  whether  conti 
nental  or  insular,  lay  at  our  very  door  in  tempting 
helplessness. 

But  neither  the  Government  and  people  of  the 
United  States,  nay,  nor  their  laurel-crowned  Gener 
als  and  Admirals,  desired  war  as  a  choice,  nor  would 
accept  it  but  as  a  necessity;  and  they  elected* to  con 
tinue  to  negotiate  with  Great  Britain,  and  to  do  what 
no  great  European  State  has  ever  done  under  like  cir 
cumstances, — that  is,  to  disarm  absolutely,  and  make 
thorough  trial  of  the  experiment  of  generous  forbear 
ance  before  having  recourse  to  the  dread  extremity 
of  vengeful  hostilities  against  Great  Britain. 

NEGOTIATIONS  BY   MR.  SEWARD. 

The  event  justified  our  conduct.  To  the  prejudiced 
and  impracticabl^Lord  Russell,  there  succeeded  in 
charge  of  the  foreign  affairs  of  the  British  Govern 
ment,  first,  Lord  Stanley  [now  the  Earl  of  Derby], 
and  then  the  Earl  of  Clarendon,  \vho,  more  wise  and 
just  than  he,  successively  entered  upon  negotiations 
with  the  United  States  on  that  very  basis  of  arbitra- 

B 


13  THE  TREATY  OF  WASHINGTON. 

tion  which  he  had  so  peremptorily  rejected,  but  which 
Mr.  Seward  persisted  in  asserting  as  wise  in  itself  and 
honorable  to  both  Governments. 

Those  negotiations  failed.     But  the  rejection  by 
the  Senate  of  the  Clarendon- Johnson  Treaty,  with 
Mr.  Sumner's  commentary  thereon,  if  it  had  the  ap 
parent  effect,  at  first,  of  widening  the  breach  between 
the  two  countries  by  the  irritation  it  produced  in  En 
gland,  yet  ultimately  had  the  opposite  effect  by  fore- 
\      ing  on  public  attention  there  a  more  general  and 
V  clearer  perception  of  the  wrong  which  had  been  done 
x  to  the  United  States. 

POLICY    OF  PRESIDENT   GHANT. 

At  this  stage  of  the  question,  President  Grant  came 
into  ofiice ;  and  he  and  his  advisers  seem  to  have  well 
judged  that  it  sufficed  for  him,  after  giving  expres 
sion  fully  and  distinctly  to  his  own  view  of  the 
questions  at  issue,  there  to  pause  and  wait  for  the 
tranquillization  of  opinion  in  England,  and  the  prob 
able  initiation  of  new  negotiations  by  the  British 
Government. 

It  happened  as  the  President  anticipated,  and  with 
attendant  circumstances  of  peculiar  interest  to  the 
United  States. 

During  the  late  war  between  Germany  and  France, 
the  condition  of  Europe  was  such  as  to  induce  the 
British  Ministers  to  take  into  consideration  the  for 
eign  relations  of  Great  Britain ;  and,  as  Lord  Gran- 
ville,  the  British  Minister  of  Foreign  Affairs,  has  him 
self  stated  in  the  House  of  Lords,  they  saw  cause  to 


w 

ALABAMA  CLAIMS.  19 

look  with  solicitude  on  the  uneasy  relations  of  the 
British  Government  with  the  United  States,  and  the 
inconvenience  thereof  in  case  of  possible  complica 
tions  in  Europe.  Thus  impelled,  the  Government 
dispatched  to  Washington  a  gentleman,  who  enjoyed 
the  confidence  of  both  Cabinets,  Sir  John  Rose,  to  as 
certain  whether  overtures  for  re-opening  negotiations 
would  be  received  by  the  President  in  spirit  and 
terms  acceptable  to  Great  Britain. 
/  It  was  the  second  time,  in  the  present  generation, 
foreign  policy  of  England  had  been  directed 
a  sense  of  the  importance  to  her  of  maintaining 
good  relations  with  the  United  States;  for, by  argu 
ing  from  that  point,  France,  at  the  opening  of  war 
with  Prussia,  induced  the  British  Government  to  de 
sist  from  those  excessive  belligerent  pretensions  to 
the  prejudice  of  neutrals,  which  in  former  times  had 
served  to  embroil  her  with  both  France  and  the  Unit 
ed  States. 

There  is  another  fact,  which,  in  my  opinion,  power 
fully  contributed  to  induce  this  overture  on  the  part 
of  the  British  Government,  although  it  was  not  spok 
en  of  in  this  connection  by  Lord  Granville.  I  allude 
to  the  President's  recommendation  to  Congress  to  ap 
point  a  commission  to  audit  the  claims  of  American 
citizens  on  Great  Britain  growing  out  of  the  acts  of 

o  o 

Confederate  cruisers,  in  view  of  having  them  assumed 

'  O 

by  the  Government  of  the  United  States.  In  this  in 
cident  there  was  matter  of  grave  and  serious  reflection 
to  Great  Britain. 

On  arriving  at  Washington,  Sir  John  Eose  found 


20  THE   TREATY   OF  WASHINGTON. 

the  United  States  disposed  to  meet  with  perfect  cor 
respondence  of  good-will  the  advances  of  the  British 
Government. 

OVERTURES  BY   GREAT   BRITAIN. 

Accordingly,  on  the  26th  of  January,  1871,  the 
British  Government,  through  Sir  Edward  Thornton, 
formally  proposed  to  the  American  S-ofernment  the 
appointment  of  a  joint  High  Commission  to  hold  its 
sessions  at  Washington,  and  there  devise  means  to 
settle  ihe  various  pending  questions  between  the  two 
Governments  affecting  the  British  possessions  in 
North  America. 

To  this  overture  Mr.  Fish  replted  that  the  President 
would  with  pleasure  appoint,  as  invited,  Commission 
ers  on  the  part  of  the  United  States,  provided  the  de 
liberations  of  the  Commissioners  should  be  extended 
to  other  differences, — that  is  to  say,  to  include  the  dif 
ferences  growing  out  of  incidents  of  the  late  Civil 
War:  without  which?  in  his  opinion,  the  proposed 
Commission  would  fail  to  establish  those  permanent 
relations  of  sincere  and  substantial  friendship  between 
the  two  countries  which  he,  in  common  with  the 
Queen,  desired  to  have  prevail. 

The  British  Government  promptly  accepted  this 
proposal  for  enlarging  the  sphere  of  the  negotiation, 
with  the  result,  as  we  have  already  seen,  of  the  con 
clusion  of  the  Treaty  of  Washington. 


ALABAMA  CLAIMS..  21 

STIPULATIONS  RESPECTING  THE  ALABAMA  CLAIMS. 

The  Treaty  begins  by  describing  the  differences, 
which  we  are  now  considering,  as  differences  "  grow 
ing  out  of  the  acts  committed  by  the  several  vessels, 
which  have  given  rise  to  the  claims  generically  known 
as  the  Alabama  Claims;"  which  are  further  de 
scribed  as  "all  the  said  claims  growing  out  of  acts 

O  C3 

committed  by  the  aforesaid  vessels,  and  generically 
known  as  the  Alabama  Claims" 

Note  that  the  subject  of  difference  is  stated  in  terms 
of  absolute,  although  specific,  universality,  as  all  the 
claims  on  the  part  of  the  United  States  growing  out 
of  the  acts  of  certain  vessels.  No  exception  is  made 
of  any  particular  claims  growing  out  of  those  acts. 
And  reference  is  not  made  to  certain  admitted  claims 
by  the  British  Government :  on  the  contrary,  it  is  ex 
pressly  declared  in  the  Treaty  that  the  "  complaints" 
and  "  claims"  of  the  United  States,  without  any  dis 
crimination  between  them,  "  are  not  admitted  by  the 
British  Government." 

At  the  same  time,  the  British  Coihmissioners,  by 
authority  of  the  Queen,  express,  "  in  a  friendly  spirit, 
the  regret  felt  by  Her  Majesty's  Government  for  the 
escape,  under  whatever  circumstances,  of  the  Alabama 
and  other  vessels  from  British  ports,  and  for  the  dep 
redations  committed  by  those  vessels." 
^Whereupon,  " in  order  to  remove  and  adjust  all' 
complaints   and  claims  on  the  part  of  the  United  ' 
States,  and  to  provide  for  the  speedy  settlement  of  [ 
such  claims,"  the  contracting  parties  r.gree  that  all-! 


22  THE  TREATY  OF  WASHINGTON. 

the  said  claims,  growing  out  of  acts  committed  by  the 
aforesaid  vessels,  and  generically  known  as  the  Ala 
bama  Claims,  shall  be  referred  to  a  Tribunal  of  Ar 
bitration  to  be  composed  of  five  Arbitrators,  appoint 
ed  in  the  following  manner, — namely,  one  by  the  Pres 
ident  of  the  United  States,  and  one  by  the  Queen  of 
the  United  Kingdom,  with  request  to  the  King  of 
Italy,  the  President  of  the  Swiss  Confederation,  and 
the  Emperor  of  Brazil,  each  to  name  an  Arbitrator ; 
and,  on  the  omission  of -either  of  those  personages  to 
&ct,  then  with  a  like  request  to  the  King  of  Sweden 
and  Norway. 

The  Treaty  further  provides  that  the  Arbitrators 
'shall  meet  at  Geneva,  in  Switzerland,  at  the  earliest 
convenient  day  after  they  shall  have  been  named,  and 
shall  proceed  impartially  and  carefully  to  examine 
and  decide  all  questions  which  shall  be  laid  before 
them  on  the  part  of  either  Government. 

In  deciding  the  matters  submitted  to  the  Arbitra 
tors,  it  is  provided  that  they  shall  be  governed  by 
certain  rules,  which  are  agreed  upon  by  the  parties  as 
rules  to  be  taken  as  applicable  to  the  case,  and  by 
such  principles  of  international  law,  not  inconsistent 
therewith,  as  the  Arbitrators  shall  determine  to  have 
been  applicable  to  the  case,  which  rules  are  as  fol 
lows  r 

"  A  neutral  Government  is  bound — 

"  First,  to  use  due  diligence  to  prevent  the  fitting  out,  arm 
ing,  or  equipping,  within  its  jurisdiction,  of  any  vessel  which  it 
has  reasonable  ground  to  believe  is  intended  to  cruise  or  to 
carry  on  war  against  a  Power  with  which  it  is  at  peace ;  and 
also  to  use  like  diligence  to  prevent  the  departure  from  its  ju- 


ALABAMA   CLAIMS.*  %& 

risdiction  of  any  vessel  intended  to  cruise  or  carry  on  war  as 
above,  such  vessel  having  been  specially  adapted,  in  whole-  or 
in  part,  within  such  jurisdiction,  to  warlike  use. 

"  Secondly,  not  to  permit  or  suffer  either  belligerent  to  make 
use  of  its  ports  or  waters  as  the  base  of  naval  operations  against 
the  other,  or  for  the  purpose  of  the  renewal  or  augmentation 
of  military  supplies  or  arms,  or  the  recruitment  of  men. 

"  Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  wa 
ters,  and,  as  to  all  persons  within  its  jurisdiction,  to  prevent 
any  violation  of  the  foregoing  obligations  and  duties." 

Great  Britain,  it  is  added  in  the  Treaty  by  way  of 
explanation,  can  not  assent  to  the  foregoing  rules  as 
a  statement  of  principles  of  international  law  which 
were  actually  in  force  at  the  time  when  the  claims  in 
question  arose ;  but,  in  order  to  evince  her  desire  of 
strengthening  the  friendly  relations  between  the  two 
countries,  and  of  making  satisfactory  provision  for  the 
future,  she  agrees  that,  in  deciding  the  questions  aris 
ing  out  of  such  claims,  the  Arbitrator  should  assume 
that  she  had  undertaken  to  act  upon  the  principles 
set  forth  in  these  rules. 

And  the  Parties  proceed  to  stipulate  to  observe i 
these  rules  as  between  themselves  in  the  future,  and 
to  bring  them  to  the  knowledge  of  other  maritime* 
Powers,  and  to  invite  the  latter  to  accede  thereto. 

In  respect  of  procedure,  the  Treaty  provides  that , 
each  of  the  two  Parties  shall  name  one  person  to  at- ' 
tend  the  Tribunal  as  its   agent  or  representative; 
that  the  written  or  printed  case  of  each  of  the  twoi 
Parties,  accompanied  by  the  documents,  the  official 
correspondence,  and  other  evidence  on  which  each 
relies,  shall  be  delivered  in  duplicate  to  each  of  the 


24:  THE  TREATY  OF  WASHINGTON. 

Arbitrators  and  to  the  agent  of  the  other  Party,  as 
soon  as  may  be  after  the  organization  of  the  Tribu 
nal;  that  within  four  months  after  the  delivery  on 
both  sides  of  the  written  or  printed  case,  either  Party 
may,  in  like  manner,  deliver  in  duplicate  to  each  of 
the  said  Arbitrators  and  to  the  agent  of  the  other 
Party  a  counter-case,  and  additional  documents,  cor 
respondence,  and  evidence,  in  reply  to  the  case,  docu 
ments,  correspondence,  and  evidence  so  presented  by 
the  other  Party;  that  it  shall  be  the  duty  of  the 
agent  of  each  Party,  within  two  months  after  the  ex 
piration  of  the  time  limited  for  the  delivery  of  the 
counter-case  on  both  sides,  to  deliver  in  duplicate  to 
each  of  the  said  Arbitrators  and  to  the  agent  of  the 
other  Party  a  written  or  printed  argument  showing 
the  points  and  referring  to  the  evidence  upon  which 
his  Government  relies. 

No  express  provision  for  the  appointment  of  coun 
sel  appears  in  the  Treaty;  but  they  are  recognized 
in  the  clause  which  declares  that  the  Arbitrators 
may,  if  they  desire  further  elucidation  with  regard 
to  any  point,  require  a  written  or  printed  state 
ment  or  argument,  or  oral  argument,  by  counsel  upon 
it;  but  in  such  case  the  other  Party  shall  be  enti 
tled  to  reply  either  orally  or  in  writing,  as  the  case 
may  be; 

Finally,  with  reference  to  procedure,  it  is  stipu 
lated  that  the  Tribunal  shall  first  determine  as  to 
each  vessel  separately,  whether  Great  Britain  has,  by\ 
any  act  or  omission,  failed  to  fulfill  any  of  the  duties] 
set  forth  in  the;  Treaty  rules,  or  recognized  by  the! 


ALABAMA   CLAIMS.  25 

principles  of  international  law  not  inconsistent  with 
such  rules,  and  shall  certify  such  fact  as  to  each  of 
the  said  vessels.  This  decision  shall,  if  possible,  be 
reached  within  three  months  from  the  close  of  the 
argument  on  both  sides. 

In  case  the  Tribunal  finds  that  Great  Britain  has 
failed  to  fulfill  any  duty  or  duties  as  aforesaid,  it  may, 
if  it  think  proper,  proceed  to  award  a  sum  in  gross 
to  be  paid  by  Great  Britain  to  the  United  States  for 
all  the  claims  referred  to  it;  and  in  such  case  the 
gross  sum  so  awarded  shall  be  paid  in  coin  by  the 
Government  of  Great  Britain  to  the  Government  of 
the  United  States,  at  Washington,  within  twelve 
months  after  the  date  of  the  award. 

In  case  the  Tribunal  finds  that  Great  Britain  has 
failed  to  fulfill  any  duty  or  duties  as  aforesaid,  and 
does  not  award  a  sum  in  gross,  the  Parties  agree  that 
a  Board  of  Assessors  shall  be  appointed  to  ascertain 
and  determine  what  claims  are  valid,  and  what 
amount  or  amounts  shall  be  paid  by  Great  Britain 
to  the  United  States  on  account  of  the  liability  aris 
ing  from  such  failure,  as  to  each  vessel,  according  to 
the  extent  of  such  liability  as  decided  by  the  Arbi 
trators.  This  Board  to  be  constituted  as  follows: 
One  member  thereof  to  be  named  by  the  United 
States,  one  by  Great  Britain,  and  one  by  the  Repre 
sentative  at  Washington  of  the  King  of  Italy. 

In  conclusion,  the  Parties  engage  to  consider  the 
result  of  the  proceedings  of  the  Tribunal  of  Arbitra 
tion  and  of  the  Board  of  Assessors,  should  such 
Board  be  appointed,  "  as  a  full,  perfect,  and  final  set- 


20  TIIE  TREATY  OF  WASHINGTON. 

tlenient  of  all  the  claims"  in  question ;  and  further 
engage  that  "  every  such  claim,  whether  the  same 
may  or  may  not  have  been  presented  to  the  notice 
of,  made,  preferred,  or  laid  before  the  Tribunal  or 
Board,  shall,  from  and  after  the  conclusion  of  the 
proceedings  of  the  Tribunal  or  Board,  be  considered 
and  treated  as  finally  settled,  barred,  and  thenceforth 
inadmissible." 

ARRANGEMENTS   OF  ARBITRATION. 

The  appointment  of  Arbitrators  to'ok  place  in  due 
course,  and  with  the  ready  good-will  of  the  three  neu 
tral  Governments.  The  United  States  appointed  Mr. 
Charles  Francis  Adams ;  Great  Britain  appointed  Sir 
Alexander  Cockburn ;  the  King  of  Italy  named  Count 
Frederic  Sclopis ;  the  President  of  the  Swiss  Confed 
eration,  Mr.  Jacob  Stsempni ;  and  the  Emperor  of 
Brazil,  the  Baron  d'ltajubd. 

Mr.  J.  C.  Bancroft  Davis  wras  appointed  Agent  of 
the  United  States,  and  Lord  Tenterden  of  Great 
Britain. 

The  Tribunal  was  organized  for  the  reception  of 
the  case  of  each  Party,  and  held  its  first  conference  on 
the  15th  of  December,  1871. 

On  the  motion  of  Mr.  Adams,  seconded  by  Sir 
Alexander  Cockburn,  it  was  voted  that  Count  Sclopis, 
as  being  the  Arbitrator  named  by  the  first  Power 
mentioned  in  the  Treaty  after  Great  Britain  and  the 
United  States,  should  preside  over  the  labors  of  the 
Tribunal. 

I  observe  in  passing,  as  will  be  more  distinctly  seen 


ALABAMA   CLAIMS.  27 

hereafter,  that  the  personal  fitness  of  Count  Sclopis 
also  rendered  it  eminently  proper  that  he  should  pre 
side  ;  for  he  was  the  senior  in  age  of  all  the  Arbitra 
tors,  of  exalted  social  condition,  and  distinguished  as 
a  man  of  letters,  a  jurist,  and  a  statesman. 

On  the  proposal  of  Count  Sclopis,  the  Tribunal  of 
Arbitration  requested  the  Arbitrator  named  by  the 
President  of  the  Swiss  Confederation  to  recommend 
some  suitable  person  to  act  as  the  Secretary  of  the 
Tribunal.  Mr.  Stsempfli  named  for  this  office  Mr. 
Alexandre  Favrot,  and  he  was  accordingly  appointed 
Secretary. 

The  printed  Case  of  the  United  States,  with  accom 
panying  documents,  was  filed  by  Mr.  Bancroft  Davis, 
and  the  printed  Case  of  Great  Britain,  with  docu 
ments,  by  Lord  Tenterden. 

The  Tribunal  made  regulation  for  the  filing  of  the 

o  o 

respective  Counter-Cases  on  or  before  the  15th  day  of 
April  next  ensuing,  as  required  by  the  Treaty ;  and 
for  the  convening  of  a  special  meeting  of  the  Tribu 
nal,  if  occasion  should  require ;  and  then,  at  a  second 
meeting,  on  the  next  day,  they  adjourned  until  the 
15th  of  June  next  ensuing,  subject  to  a  prior  call  by 
the  Secretary,  if  there  should  be  occasion,  as  provided 
for  in  the  proceedings  at  the  first  Conference. 

The  record  of  these,  and  of  all  the  subsequent  Con 
ferences  of  the  Tribunal,  is  contained  in  alternate  Pro 
tocols,  drawn  up  both  in  French  and  in  English,  veri 
fied  by  the  signatures  of  the  President  and  Secretary, 
and  of  the  agents  of  the  two  Governments. 

In  these  opening  proceedings,  that  is,  at  the  very 


28  THE  TREATY  OF  WASHINGTON. 

earliest  moment  possible,  signs  became  visible  of 
the  singular  want  of  discretion  and  good  sense  of 
the  "enfant  terrible,"  ostentatiously  protocoled  "Lord 
Chief  Justice  of  England,"  whom  the  British  Govern 
ment  had  placed  on  the  Tribunal. 

The  vernacular  tongue  of  Count  Sclopis  was  Ital 
ian  ;  that  of  the  Baron  d'ltajuba,  Portuguese ;  and 
that  of  Mr.  Stsempfli,  German.  Count  Sclopis  spoke 
and  read  English,  and  Mr.  Stsempfli  read  it.  All  the 
Arbitrators,  however,  were  well  acquainted  with 
French ;  and  it  was  in  this  language  that  they  com 
municated  writh  one  another,  whether  in  social  inter 
course  or  in  the  discussions  of  the  Tribunal.  Thus, 
we  had  before  us  a  Tribunal,  the  members  of  which 
did  not  either  of  them  make  use  of  his  own  language 
in-  their  common  business ;  but  met,  all  of  them,  on 
the  neutral  ground  of  the  common  diplomatic  lan 
guage  of  Europe. 

In  this  connection  it  was  that  the  United  States 
enjoyed  their  first  advantage.  Our  Government  did 
not  need  to  wTait  until  the  organization  of  the  Tribu 
nal  to  know  in  what  language  its  proceedings  would 
be  conducted ;  and,  in  prevision  of  this  fact,  it  ordered 
the  American  "Case"  to  be  translated  from  the  En 
glish  into  French,  so  as  to  be  presented  simultaneous 
ly  in  both  languages  at  the  meeting  of  the  Tribu 
nal:  the  exigency  for  which  was  not  anticipated, 
or,  if  anticipated,  was  not  provided  for,  by  the  Brit 
ish  Government. 

The  American  "  Case  "  and  documents  are  contain 
ed  in  eight  volumes  octavo,  which  consist  in  all  of 


ALABAMA  CLAIMS.  29 

5-442  pages,  as  reduced  to  a  common  standard,  that  of 
the  printing  by  Congress. 

The  British  "  Case  "  and  documents  fill,  in  the  re 
print  by  Congress,  three  volumes  octavo,  consisting  of 
2823  pages. 

Perusal  of  the  American  and  British  Cases,  and  of 
their  accompanying  documents  on  both  sides,  brings 
us  to  consideration  of  the  peculiarities  in  the  course 
of  argument  and  trial  prescribed  by  the  Treaty. 

In  effect,  the  United  States  were  the  plaintiffs,  and 
Great  Britain  the  defendant,  in  a  suit  at  law,  to  be 
tried,  it  is  true,  before  a  special  tribunal,  and  deter 
mined  by  conventional  rules,  but  not  the  less  a  suit 
at  law  for  the  recovery  of  damages  in  reparation  of 
alleged  injuries. 

In  common  course,  the  plaintiff's  counsel  would 
open  his  case  and  put  in  his  evidence ;  the  defendant's 
counsel  would  then  open  the  defense  and  put  in  de 
fensive  proofs ;  and,  after  the  close  of  the  testimony 
on  both  sides,  the  defendant's  counsel  would  argue  in 
close  for  the  defense,  and  then  the  plaintiff's  counsel 
in  final  close  for  the  plaintiff. 

Here,  on  the  contrary,  the  defendant's  opening  argu 
ment  and  defensive  proofs  went  in  at  the  same  time 
as  the  plaintiff's  opening  argument  and  proofs,  each 
under  the  name  of  the  "Case"  of  the  respective  Party. 

The  British  Case,  of  course,  could  not  answer  the 
American  Case,  save  by  conjecture  and  anticipation 
founded  on  common  knowledge  of  the  subject-matter. 

The  respective  Counter-Cases  of  the  Parties  were 
to  go  in  together,  in  like  manner,  in  April,  and  their 


30  THE  TREATY  OF  WASHINGTON. 

respective  Arguments  in  June  :  so  that  the  Counter- 
Cases  would  on  each  side  be  response  to  the  previous 
Cases,  and  the  Arguments  to  the  previous  Counter- 
Cases. 

This  course  of  presentation  was  in  no  sort  prejudi 
cial  to  the  United  States,  as  plaintiffs,  and  was  exceed 
ingly  advantageous  to  Great  Britain,  as  defendant. 


AMERICAN  CASE. 

Nevertheless,  when  our  "  Case  "  went  in,  —  that  is  to 
say,  the  opening  argument  for  the  United  States,  —  its 
true  character  as  such  was  misapprehended  in  En 
gland,  where  it  seemed  to  be  forgotten  that  the  time 
and  place  for  replying  to  it  wrere  in  the  British  Coun 
ter-Case,  and  not  in  the  newspapers  of  London  or  in 
the  British  Parliament. 

Similar  misconception  occurred  subsequently  with 
regard  to  the  American  Argument;  the  Counsel  for 

O  O  i 

Great  Britain  thinking  that  he  ought  to  have  the  op 
portunity  of  replying,  as  will  be  explained  hereafter, 
and  losing  sight  of  the  fact  that  the  British  Govern 
ment  had  already  argued  the  matter  three  times  in 
"  Case,"  "  Counter-Case,"  and  «  Argument." 

As  to  the  American  Case,  it  seemed  to  fall  into  the 
adversary's  camp  like  a  bomb-shell,  which  rendered 
every  body  dumb  for  a  month,  and  then  produced 
an  explosion  of  clamor,  which  did  not  cease  for  three 
or  four  months,  and  until  the  final  decision  of  the 
Tribunal  of  Arbitration. 

The  leading  journals  of  England,  whether  daily  or  / 
weekly,  such  as  the  London  Times,  Telegraph,  and[ 


ALABAMA  CLAIMS.  3i 

News,  the  Saturday  Review,  the  Spectator,  the  Pall 
Mall  Gazette,  the  Manchester  Guardian,  and  other 
British  journals  generally,  are  certainly  conducted 
with  great  ability,  and  are  second,  in  character  and  in 
value,  to  no  others  in  Europe.  In  view  of  which  it 
must  be  confessed  that  the  outcry  which  they  made 
against  the  American  Case  seemed  to  me  at  the  time  / 
to  be  altogether  unworthy  of  them  and  of  England. 

It  was  my  opinion  on  reading  the  American  Case 
for  the  first  time,  and  is  my  opinion  now,  after  re- 
peated  readings,  that  it  is  not  only  a  document  of 
signal  ability,  learning,  and  forensic  force, — which,  in 
deed,  ever}7  body  admits, — but  that  it  is  also  temper- ) 
ate  in  language  and  dignified  in  spirit,  as  becomes) 
any  state  paper  which  is  issued  in  the  name  of  the! 
United  States. 

I  do  not  mean  to  say  that  it  is  so  cold  a  document 
as  the  British  Case.  Warmth  or  coldness  of  color  is  a 
matter  of  taste,  in  respect  of  which  the  United  States 
have  no  call  to  criticise  Great  Britain,  and  Great  Brit 
ain  has  no  right  to  criticise  the  United  States. 

We  may  presume  that,  in  the  exercise  of  its  un 
questionable  right,  the  Government  of  the  United  j 
States  made  up  its  Case  in  the  aim  of  convincing  the  ( 
Arbitrators,  and  not  with  any  dominant  purpose  or  • 
special  expectation  of  pleasing  Great  Britain. 

But  there  is  no  just  cause  of  exception  to  the  gen 
eral  tenor,  spirit,  or  style  of  the  American  Case.  Its 
facts  are  pertinent ;  its  reasonings  are  cogent ;  its  con 
clusions  are  logical:  and  in  all  that  is  the  true  ex 
planation  of  the  emotion  it  occasioned  in  England. 


32  THE   TREATY  OF  WASHINGTON. 

Intelligent -people  there,  on  reading  the  American 
Case,  then  opened  their  eyes  universally  to  the  fact 
that  Great  Britain  was  about  to  be  tried  before  a  high 
court  constituted  by  three  neutral  Governments. 
That  was  not  an  agreeable  subject  of  reflection.  In 
telligent  Englishmen  also,  on  reading  the  American 
Case,  began  to  be  uneasily  conscious  of  the  strength 
of  the  cause  of  the  United  States.  And  that  was  not 
an  agreeable  subject  of  reflection.  For  a  good  cause,! 
in  a  good  court,  seemed  likely  to  result  in  a  great  in- ! 
ternational  judgment  adverse  to  England. 
*  The  specific  objections  preferred  were  quite  futile. 
Thus,  complaint  was  made  because  the  Case  charged 
the  British  Ministers  with  unfriendliness  to  the 
United  States  for  a  certain  period  of  the  Civil  War. 
But  the  charge  was  proved  by  citing  the  declarations 
of  those  Ministers ;  it  w^as  not,  and  could  not  be  de 
nied  by  any  candid  Englishman ;  it  is  admitted  by 
Sir  Alexander  Cockburn  in  the  dissenting  opinion 
which  he  filed  at  the  close  of  the  Arbitration.  And 
the  charge  was  pertinent,  because  it  explained  the 
negligent  acts  of  subordinate  British  authorities,  as 
at  Liverpool  or  Nassau  :  which  acts  could  not  be 
otherwise  explained  unless  by  suggesting  a  worse 
imputation,  namely,  that  of  hostile  insincerity  on  the 
part  of  the  Ministers. 

If  there  be  any  person  at  the  present  day,  wrho  is 
inclined  to  call  in  question  the  truth  of  the  foregoing 
remarks,  he  is  earnestly  entreated  to  read  the  Amer 
ican  Case  now,  in  the  light  of  the  adjudged  guilt  of 
the  British  Government,  and  he  will  then  see  ample 


ALABAMA  CLAIMS. 


cause  to  approve  the  reason,  the 
per  of  that  Case. 

EXPLANATION  OF  OBJECTIONS  TO  THE  AMERICAN  CASE. 

The  truth  undoubtedly  is,  that  discontent  with  the  , 
Treaty  itself  had  much  to  do  in  England  with  objec-  ) 
tions  to  the  "  Case;"     The  British  Ministers  had  ne 
gotiated  the  Treaty  in  perfect  good  faith,  and  in  well- 
founded  conviction  of  its  wisdom,  of  the  justice  of  its  I 
provisions,  and  of  its  not  conflicting  with  the  honor  / 
either  of  Great  Britain  or  of  the  United  States.    Par 
liament  had  accepted  the  Treaty  without  serious  op 
position,  and  with  but  little  debate,  except  on  the 
very  trivial  party  question  whether  it  was  more  or 
less  favorable  to  Great  Britain  than  the  conventions 
negotiated  by  Lord  Stanley  and  the  Earl  of  Claren 
don.     And  Great  Britain,  as  a  nation,  had,  beyond 
all  peradventure,  heartily  approved   and  welcomed 
the  conclusion  of  the  Treaty. 

But,  on  reading  the  American  Case,  and  reflecting 
on  the  constitution  of  the  proposed  Tribunal,  many 
Englishmen  yielded  to  a  sentiment  of  undue  estimate 
of  English  law  and  English  lawyers,  as  distinguished 
from  the  laws  and  the  lawyers  of  Continental  Europe 
and  of  Spanish  and  Portuguese  America.  '  England 
has  good  reason  to  be  proud  of  her  legal  institutions 
and  of  her  jurists,  and,  of  late  years,  she  has  learned 
to  regard  the  common  law  with  some  abatement  of 
ik&tfetichism  of  devotion  which  was  taught  by  Coke 
and  by  Fortescue.  But  the  statesmen  appointed  by 
the  three  neutral  Governments  to  act  as  Arbitrators 

C 


34  THE  TREATY  OF  WASHINGTON. 

at  Geneva,  and  who,  it  was  clearly  seen,  would  be  the 
effective  judges  in  the  cause,  were  not  likely  to  share 
the  English  opinion  of  the  common  law  of  England. 
And  these  three  Arbitrators  were  persons  outside  of 
the  range  of  the  observation,  knowledge,  or  apprecia 
tion  of  most  Englishmen,  who  felt  undefined  distrust 
of  men  whom  they  did  not  and  could  not  know  as 
they  knew  Englishmen  and  Americans.  Nay,  En 
glishmen  were  heard  to  say,  in  conversation,  that  they 
would  prefer  a  tribunal  made  up  of  Englishmen  and 
Americans.  We  shall  fully  comprehend  how  strong 
this  sentiment  was  among  average  Englishmen,  when 
we  remember  that  expression  was  given  to  it  in  the 
House  of  Lords  by  the  Marquess  of  Salisbury,  who, 
notwithstanding  his  high  intelligence,  and  the  cos 
mopolitan  experience  which  men  of  his  rank  possess, 
could  characterize  as  unknown,  and,  therefore,  as  ob 
jectionable,  an  actual  Ambassador  in  France,  an  ex- 
President  of  Switzerland,  and  a  Senator  and  ex-Min 
ister  of  Italy  with  fame  as  a  jurist  and  historian  per 
vading  Europe.  It  was  a  sentiment  which  Sir  Alex 
ander  Cockburn  betrayed  in  his  deportment  and 
language  at  several  meetings  of  the  Tribunal. 

These,  however,  were  but  the  transitory  incidents 
of  popular  emotion  and  public  discussion,  and  of  sec 
ondary  significance. 

AGITATION  RESPECTING  THE  NATIONAL  CLAIMS. 

But  the  agitation  which  soon  followed,  on  the  sub 
ject  of  certain  of  the  claims  set  forth  in  the  Case  of 
the  United  States,  arose  at  once  to  national  impor- 


ALABAMA  CLAIMS.  35 

tance.     I  allude,  of  course,  to  what  was  frequently  / 
spoken  of  as  the  question  of  "  indirect  claims." 

The  expression  is  incorrect,  and,  if  admissible  as  a 
popular  designation,  it  must  not  be  permitted  to  pro 
duce  any  misconception  of  the  true  question  at  issue. 
It  would  be  less  inaccurate  to  speak  of  them  as  "  claims 
for  indirect  or  constructive  losses  or  damages,"  which 
is  the  more  common  phrase  in  the  diplomatic  papers ; 
and  less  inaccurate  still  to  say  "  remote  or  consequen 
tial  losses  and  damages."  But,  in  truth,  none  of  these 
expressions  are  correct,  and  the  use  of  them  has  done 
much  to  obscure  the  actual  point  of  controversy,  and 
to  divert  the  public  mind  into  devious  paths  of  argu 
ment  or  conclusion. 

When,  in  the  instructions  to  Mr.  Motley  of  Septem 
ber  25th,  1869,  President  Grant  caused  the  British 
Government  to  be  informed,  through  the  Secretary 
of  State,  of  the  nature  of  the  grievances  of  the  United 
States,  he  employed  the  following  language : 

"  The  President  is  not  yet  prepared  to  pronounce  on  the 
question  of  the  indemnities  which  he  thinks  due  by  Great 
Britain  to  individual  citizens  of  the  United  States  for  the  de 
struction  of  their  property  by  rebel  cruisers  fitted  otft  in  the 
ports  of  Great  Britain. 

"  Xor  is  he  now  prepared  to  speak  of  the  reparation  which 
he  thinks  due  by  the  British  Government  for  the  larger  ac 
count  of  the  vast  national  injuries  it  has  inflicted  on  the  United 
States. 

"Nor  does  he  attempt  now  to  measure  the  relative  effect  of 
the  various  causes  of  injury,  whether  by  untimely  recognition 
of  belligerency,  by  suffering  the  fitting  out  of  rebel  cruisers,  or 
by  the  supply  of  ships,  arms,  and  munitions  of  war  to  the  Con 
federates,  or  otherwise,  in  whatsoever  manner. 


36  THE  TREATY  OF  WASHINGTON. 

"Nor  does  it  fall  within  the  scope* of  this  dispatch  to  discuss 
the  important  changes  in  the  rules  of  public  law,  the  desirable 
ness  of  which  has  been  demonstrated  by  the  incidents  of  the 
last  few  years,  now  under  consideration,  and  which,  in  view  of 
the  maritime  prominence  of  Great  Britain  and  the  United 
States,  it  would  befit  them  to  mature  and  propose  to  the  other 
States  of  Christendom. 

"All  these  are  subjects' of  future  consideration,  which,  when 
the  time  for  action  shall  arrive,  the  President  will  consider 
with  sincere  and  earnest  desire  that  all  differences  between 
the  two  nations  may  be  adjusted  amicably  and  compatibly 
with  the  honor  of  each,  and  to  the  promotion  of  future  concord 
between  them ;  to  which  £nd  he  will  spare  no  effort  within  the 
range  of  his  supreme  duty  to  the  right  and  interests  of  the 
United  States." 

The  British  Government  was  in  this  way  distinctly 
notified  that,  in  addition  to  the  question  of  indeninir 
ties  to  individual  citizens  for  the  destruction  of  their 
property,  the  United  States  were  entitled  to  repara 
tion  "  for  the  larger  account  of  the  vast  national  in 
juries"  inflicted  on  them  as  a  Government. 

That  the  British  Government  so  understood  the 
matter  is  proved  by  the  tenor  of  the  elaborate  respon 
sive  paper,  styled  "  Observations,"  appended  to  Lord 
Clarendon's  dispatch  to  Sir  Edward  Thornton  of  the 
ensuing  November ;  and  our  national  claims  are  spe 
cifically  commented  on  in  those  "  Observations." 

It  is  immaterial  how  these  national  losses  came 
afterward  to  be  designated  by  the  title  of  construct 
ive  or  indirect ;  yet  such  is  the  fact. 

Now,  it  is  perfectly  clear  that  national  claims  are 
not  claims  for  indirect  or  constructive  loss,  any  more 
than  individual  claims  are.  In  fact,  throughout  the 


ALABAMA  CLAIMS.  37 

legal  discussions  before  the  Tribunal,  the  British  Gov 
ernment  steadily  maintained1  that  all  the  claims  of  in 
dividual  citizens  for  the  destruction  of  their  vessels) 
by  Confederate  cruisers  were  in  the  nature  of  con 
structive,  indirect,  remote,  and  consequential  injuries 
or  losses,  and,  therefore,  not  recoverable  in  law,  either! 
by  the  rules  of  the  common  law  of  England  or  of  the 
civil  law  as  practiced  on  the  Continent.  Nothing 
could  more  clearly  show  the  inapplicability  and 
equivocation  of  the  phrase  "indirect"  claims  or  losses 
to  designate  any  of  the  contents  of  the  Treaty  of 
Washington. 

Manifestly,  while  private  losses  are  supposable 
which  may  be  direct  to  individual  citizens,  national 
losses  are  supposable  which  may  be  direct  to  the  na 
tion.  On  the  other  hand,  private  losses  are  supposa 
ble  as  well  as  national,  which  any  jurist  or  any  court 
would  pronounce  to  be  indirect,  remote,  or  consequen 
tial  in  their  nature. 

All  the  discussion  on  this  question  asserts  or  ad 
mits  impliedly  that  the  capture  of  a  private  mer 
chant's  vessel  by  a  Confederate  cruiser  inflicted  direct 
loss  or  damage  on  the  citizen-proprietor.  Was  not 
the  loss  or  damage  occasioned  by  the  capture  of  a 
,  Government  vessel  equally  a  case  of  direct  loss  to 
the  Government  ?  Most  assuredly. 

Pursue  the  inquiry  one  step  further.  If,  in  a  war 
carried  on  by  land  between  two  States,  one  of  them 
invades  the  other  and  devastates  the  territory  there 
of,  is  not  that  a  case  of  direct  injury  to  the  invaded 
State  ?  If  the  hostilities  in  question  be  purely  mari- 


38  THE  TREATY   OF  WASHINGTON. 

time,  as  in  the  example  of  the  imperfect  or  quasi  war 
between  the  United  States  and  France  in  the  closing 
years  of  the  last  century,  can  it  be  denied  that  the 
injuries  done  to  either  nation  by  such  hostilities  on 
the  sea  involve  direct  national  as  well  as  private 
injuries? 

On  first  impression,  therefore,  it  might  seem  that 
the  British  Government  and  British  opinion  ran  wild 
in  the  chase  of  shadows,  and  combated  a  creature  of 
mere  imagination  in  quarreling  with  this  part  of  the 
American  Case  at  all,  and,  still  more,  in  contending 
that  on  this  account  Great  Britain  could  be  justified 
in  revoking  the  arbitration  agreed  upon, — that  is,  in 
effect,  violating  the  Treaty. 

The  Treaty  referred  to  the- Tribunal  of  Arbitration, 
in  terms  unequivocal,  all  claims  of  the  United  States 
growing  out  of  the  acts  committed  by  certain  vessels, 
and  generically  Jcnown  as  "Alabama  Claims"     It 
might  need  to  go  outside  of  the  Treaty  into  antece 
dent  or  contemporaneous  diplomatic  correspondence 
in  order  to  ascertain  the  meaning  of  the  phrase  "Ala* 
lama  Claims ;"  but,  in  so  doing,  it  would  incontro- 
vertibly  appear,  at  every  stage  of  such  correspond- 1 
ence,  that  national  as  well  as  individual  claims  were  \ 
comprehended,  and  were  all  confounded  together,  and,  j 
indeed,  without  mention  of  individual  claims,  in  the; 
designation  of  "claims  on  the  part  of  the  United; 
States." 

Whether  any  of  the  claims  so  preferred  on  the  part 
of  the  United  States  were  for  losses  indirect  or  conse 
quential  would  be  an  ordinary  question  of  jurispru- 


ALABAMA  CLAIMS.  39 

dence,  for  the  decision  of  the  Tribunal  of  Arbitration, 
and  could  not  be  a  question  affecting  the  integrity  or 
force  of  the  Treaty. 

No  expression  or  even  intimation  of  the  question  of  | 
"  direct  or  indirect"  appears  on  the  face  of  the  Treaty.' 

And,  in  the  long  diplomatic  correspondence  which 
ensued  on  this  subject,  it  was  conclusively  demon 
strated  by  Mr.  Fish,  and  was,  in  effect,  admitted  by  / 
Lord  Granville,  that  no  agreement,  promise,  or  under-* 
standing  existed  on  the  part  of  the  Commissioners  to, 
qualify  the  clear  and  explicit  language  of  the  Treaty/ 

CAUSE  OF   THIS  AGITATION. 

Hence  we  might  well  infer  or  believe  that  the  su 
perficial  or  apparent  question,  which  so  agitated  peo 
ple  of  high  intelligence  and  practical  sense  like  the 
English,  was  not  the  real  or  true  one.  It  was  not. 
And,  in  order  to  understand  the  causes  of  the  storm 
of  discussion  which  broke  over  England  when  the 
tenor  of  the  American  Case  came  to  be  fully  appre 
hended  there,  and  of  the  real  consternation  which 
seemed  to  prevail  on  the  subject,  it  is  necessary  to 
take  into  consideration  certain  facts  wholly  independ 
ent  of  the  American  Case  and  the  Treaty. 

On  occasion  of  the  rejection  by  the  United  States 
of  the  Johnson-Clarendon  Treaty,  with  Mr.  Sumuer's 
speech  as  a  commentary  on  that  act,  England  came 
distinctly  to  comprehend,  what  she  had  been  fre 
quently  told  before  but  would  not  believe,  that  the 
United  States  attributed  the  prolongation  of  our  Civ 
il  War  largely  to  her  premature  recognition  of  the 


40  THE  TREATY  OF  WASHINGTON. 

belligerence  of  the  Confederates,  and  to  the  conse 
quent  facility  of  the  latter  to  obtain  supplies;  and 
also,  though  less  so,  yet  in  an  appreciable  degree,  to 
the  naval  warfare  which  the  Confederates  carried  on 
against  us  from  the  basis  of  operations  of  the  ports 
of  Great  Britain. 

Careful  perusal  of  the  instructions  to  Mr.  Motley 
would  have  shown  that  the  President  of  the  United 
States,  while  persisting  to  claim  reparation  for  all  in 
juries  done  by  Confederate  cruisers,  whether  to  indi 
viduals  or  to  the  nation,  did  not  insist  on  the  recog 
nition  of  belligerence  as  a  continuing  subject  of  claim 
of  Great  Britain. 

Conscious  of  this  distinction,  while  the  American 
Commissioners  would  not  relinquish  claim  on  account 
of  any  thing  done  by  Confederate  cruisers,  the  British 
Commissioners  were  content  with  stipulations  of  in 
demnity,  which  covered  all  national  claims  of  the  last 
category,  but  did  not  reach  back  to  claims  on  account 
of  the  unreasonableness  and  prematurity  of  the  proc 
lamation  of  the  Queen. 

That  is  what  is  meant  by  Mr.  Bernard  in  his  lect 
ure  at  Oxford,  where  he  speaks  of  the  specific  char 
acter  of  the  stipulations :  they  were  specific,  confined 
to  acts  of  the  Confederate  cruisers.  And  the  point 
is  clearly  evolved  in  the  debate  in  the  House  of  Lords 
on  occasion  of  the  presentation  of  the  Treaty,  when 
Lord  Russell  objected  that  it  was  no  better  for  Great 
Britain  than  the  Johnson-Clarendon  Treaty,  and  Lord 
Granville  replied  that  it  was  better,  because,  while  it 
includes  claims  on  account  of  acts  of  cruisers,  it  does 


ALABAMA  CLAIMS.  41 

nor  include  claims  on  account  of  the  Queen's  proclama 
tion  recognizing  the  belligerence  of  the  Confederates. 

Nevertheless,  when,  in  England,  the  argument  of 
the  American  Case  had  been  read  and  pondered,— 
when  it  was  perceived  that  this  argument  imputed  to 
Great  Britain  conductive  complicity  with  the  Con 
federates  by  reason  of  the  culpable  negligence  of  the 
British  Government  to  arrest  the  enterprises  of  such 
vessels  as  the  Alabama,  the  Florida,  and  the  SJienan- 
doali, — and,  finally,  when  it  was  thus  understood  that, 
in  preferring  claim  for  all  the  loss  or  injury  growing 
out  of  the  acts  of  those  cruisers,  whether  to  the  Gov 
ernment  or  to  private  citizens,  the  United  States  did, 
in  express  terms  as  well  as  in  legal  intendment,  hold 
the  British  Government  responsible  for  prolongation 
of  our  Civil  War  and  the  cost  of  its  prosecution, — 
when  all  these  relations  of  the  subject  came  to  be  un 
derstood,  the  public  mind  in  England,  and  especially 
the  commercial  mind,  recurred  at  once  to  the  event 
which  constituted  at  the  time  the  dominant  pre-occu- 
pation  of  Europe,  namely,  the  war  indemnity  of  six 
milliards  so  recently  imposed  by  Germany  on  France. 

In  view  of  this,  a  panic  terror  seemed  to  seize  upon 
London,  similar  to  what  occasionally  occurs  in  New 
York  and  other  great  money  centres,  producing  a 
state  of  demonstrative  emotion,  which,  to  calm  ob 
servers  outside  of  such  centres,  looks  like  the  spas 
modic  agitation  of  men  who  have  lost  their  senses, 
rather  than  intelligent  human  action.  Such,  indeed, 
is  all  panic  terror,  as  exemplified  by  numerous  his 
torical  incidents  of  the  contagious  influence,  both  in 


42  THE  TREATY  OF  WASHINGTON. 

peace  and  war,  of  the  most  trivial  causes  and  the 
most  absurd  illusions. 

On  the  present  occasion,  London  appears  to  have 
been  shaken  and  tossed  by  the  intense  fear  of  Great 
Britain  being  in  turn  called  upon  to  pay  some  indefi 
nite  milliards  of  war  indemnity  to  the  United  States. 

DISCUSSION  BETWEEN  THE  TWO  GOVERNMENTS. 

The  British  Government  was  very  slow  to  take 
this  infection  of  popular  fear  and  commotion.  The 
American  Case  was  duly  filed  on  the  15th  of  Decem 
ber.  Many  copies  of  it  were  in  the  hands  of  the 
British  Ministers  in  a  few  days  thereafter.  We  do 
not  hear  of  any  particular  disturbance  of  mind  on 
the  part  of  the  Ministers  until  the  beginning  of  Feb 
ruary,  that  is,  the  lapse  of  six  or  seven  weeks,  when 
the  American  Minister,  General  Schenck,  telegraphed 
to  Mr.  Fish  as  follows:  "  London  journals  all  demand 
that  the  United  States  shall  withdraw  claims  for  in 
direct  damages,  as  not  within  intention  of  treaty. 
Ministry  alarmed"  To  which  Mr.  Fish  responded 
by  telegraph  as  follows:  "There  must  be  no  with 
drawal  of  any  part  of  the  claim  presented.  Counsel 
will  argue  the  case  as  prepared,  unless  they  show  to 
this  Government  reasons  for  a  change.  The  alarm 
you  speak  of  does  not  reach  us.  We  are  perfectly 
calm  and  content  to  await  the  award,  and  do  not  an 
ticipate  repudiation  of  the  Treaty  by  the  other  side." 
And  in  these  two  telegrams  we  have  the  history  of 
the  whole  interval  of  time  prior  to  the  next  meeting 
of  the  Tribunal.  Newspapers  in  England  lashed 


ALABAMA  CLAIMS.  43 

themselves  into  a  "fine  frenzy."  Ministers  and  the 
Parliament,  instead  of  manfully  taking  a  stand  at  the 
outset  in  opposition  to  the  popular  current  of  delu 
sion  and  passion,  got  alarmed  and  lost  their  heads, 
and  said  and  did  some  things  not  creditable  to  the 
British  Government,  In  the  United  States,  on  the 
other  hand,  sundry  persons  were  officiously  over-zeal 
ous  on  the  wrong  side ;  the  newspaper  press  was  a 
little  flustered  ;  and  some  things  were  written  and 
published  which  it  would  have  been  better  not  to 
write  and  publish ;  but  the  public  mind  maintained 
its  equilibrium,  content,  on  the  whole,  to  await  the 
progress  of  the  arbitration  :  while  the  President,  the 
Secretary  of  State,  with  his  colleagues  of  the  Cabinet, 
and  the  Congress,  remained  "  perfectly  calm,"  stand 
ing  always  on  the  stipulations  of  the  Treaty,  and 
never  believing  it  would  be  broken  or  disregarded 
by  Great  Britain. 

In  my  opinion,  the  contrast  at  this  time  between 
the  attitude  of  the  British  Government  and  that  of 
the  American  Government  deserves  a  few  words  of 
commentary. 

It  is  not  uncommon  in  England  to  suppose  and  to 
say  that  demagogy,  that  is,  factious  appeal  to  popular 
prejudice  and  passion,  is  a  conspicuous  feature  of 
political  action  in  the  United  States.  It  seems  to 
be  supposed  also  that  demagogy  here  pleases  itself 
especially  with  accusations  of  Great  Britain.  Mean 
while,  it  is  complacently  assumed  that  self-possession 
and  stability,  with  unexceptional  amiability  toward 
the  United  States,  characterize  political  action  in 


44  THE  TREATY  OF  WASHINGTON. 

Great  Britain.  I  think  the  absolute  reverse  of  all 
this  is  the  truth. 

In  Great  Britain  the  political  institutions  of  the 
country  are  indefinite,  unwritten,  unfixed,  without  a 
positive  stand-point  any  where,  shifting  from  day  to 
day;  consisting,  in  form,  of  Kings,  Lords,  and  Com 
mons,  without  any  visible  lines  of  limitation  between 
them,  and  resolved  to-day  into  an  omnipotent  Parlia 
ment,  one  branch  of  wrhich,  the  House  of  Commons, 
arrogates  to  itself  the  character  of  a  constituent  na 
tional  convention  to  impose  on  King  and  Lords  any 
change  in  the  national  institutions  it  sees  fit,  and  as 
suming  to  itself  the  function,  by  means  of  a  quasi 
committee  of  its  body,  to  control  absolutely  the  ad 
ministration,  both  foreign  and  domestic,  of  Great 
Britain. 

This  quasi  committee  of  the  House  of  Commons, 
to  be  sure,  has  associated  with  it  another  quasi  com 
mittee  of  the  House  of  Lords:  which,  all  together, 
formerly  called  Ministers  of  the  Crown,  now  take  to 
themselves,  in  the  very  text  of  treaties  as  well  as  in 
domestic  affairs,  the  revolutionary  title  of  the  "  Brit 
ish  Government." 

But,  while  the  theoretical  power  of  the  Crown  is 
nominally  exercised  by  a  joint  committee  of  both 
Houses  of  Parliament,  it  is  vested,  in  fact,  in  the  com 
mittee  of  the  House  of  Commons,  wrhich,  upon  all  oc 
casions,  whether  of  ordinary  administrative  matters 
or  of  the  frequently  recurring  radical  changes  in  the 
political  institutions  of  the  country,  constantly  and 
loudly  defies  and  overbears  the  House  of  Lords. 


ALABAMA  CLAIMS.  45 

If  any  simple-minded  person  in  the  United  States 
happens  to  cherish  those  romantic  illusions  respect 
ing  the  constitution  of  England  which  he  may  have 
acquired  from  perusal  of  the  Commentaries  of  Sir 
William  Blackstone,  he  has  but  to  turn  over  the 
leaves  of  some  volume  of  Hansard's  Debates  in  Par 
liament,  or  peruse  authoritative  disquisitions  on  'the 
subject,  like  those  of  May  and  of  Bagehot,  to  discover 
that,  in  knowledge  and  reading  at  least,  he  has  not 
yet  emerged  from  the  mythical  epoch  of  the  political 
history  of  England. 

Now,  the  submergence  of  the  power  of  the  Crown 
in  Parliament,  and  of  that  of  Parliament  in  the  House 
of  Commons,  and  the  commitment  of  all  these  powers 
to  transitory  nominees  of  the  House  of  Commons,  are . 
facts  which,  combined,  have  produced  the  result  that 
government  in  England  is  at  the  mercy  of  every  gust 
of  popular  passion,  every  storm  of  misdirected  public 
opinion,  every  devious  impulse  of  demagogic  agita 
tion,— nothing  correspondent  to  which  exists  in  the 
United  States. 

Mr.  Gladstone  is  Prime  Minister  of  Great  Britain, 
— that  is  to  say,  of  three  hundred  millions  of  men,  ag 
gregated  into  various  States  of  Europe,  Africa,  Amer 
ica,  Asia,  and  Australasia.  But  he  holds  all  this  pow 
er  at  the  mere  will  of  a  majority  of  the  House  of  Com 
mons.  He  must  consult  their  wishes  and  their  prej 
udices  in  every  act  of  his  political  life.  If  he  con 
ceives  a  great  idea,  he  can  not  make  any  thing  of  it 
until  after  he  shall  have  driven  it  into  the  heads  of 
three  or  four  hundred  country  gentlemen,  which  are 


4:6  THE  TREATY  OF  WASHINGTON. 

not  always  easily  perforable  either  by  eloquence  or 
by  reason.  And  during  the  progress  of  all  great 
measures,  including  especially  foreign  negotiations, 
which  require  to  be  left  undisturbed  in  their  prog 
ress  from  germination  to  maturity,  he  is  subject  to  be 
goaded  almost  to  madness  every  day  by  vicious  in 
terpellations,  not  only  on  the  part  of  members  of  the 
Opposition,  but  even  his  own  supporters  in  the  House 
of  Commons. 

How  different  is  the  spectacle  of  government  in 
the  United  States !  Here,  the  President, — that  is,  the 
Prime  Minister  of  the  sovereign  people, — is  placed  in 
power  for  a  fixed  period  of  time,  during  which  he  is 
politically  independent  of  faction,  and  can  look  at  the 
temporary  passions  of  the  hour  with  calmness,  so  as 
to  judge  them  at  their  true  value,  and  accept  or  reject 
their  voice  according  to  the  dictates  of  public  duty 
and  the  command  of  his  conscience.  Neither  he  nor 
any  of  the  members  of  his  Cabinet  are  subject  to  be 
badgered  by  factious  or  unreasonable  personal  inter 
rogation  in  either  house  of  Congress. 

o  o 

Moreover,  the  House  of  Representatives  does  not 
presume  to  set  itself  up  as  the  superior  either  of  the 
President  or  of  the  Senate.  Nor  is  the  Senate  in  the 
condition  of  being  terrified  from  the  discharge  of  its 
duty  by  threats  on  the  part  of  the  President  or  of  the 
House  of  Representatives  to  subjugate  its  free  will  at 
any  moment  by  thrusting  into  it  a  batch  of  twenty 
new  administration  Senators.  Least  of  all  does  the 
House  of  Representatives  presume  to  possess  and  ex 
ercise  the  powers  of  a  constituent  national  convention, 


ALABAMA  CLAIMS.         I1  3  &S  I  T 


to  change  in  its  discretion  the 
United  States. 

Thus  it  was  that,  in  the  matter  of  the  discussion  of 
this  Treaty,  Mr,  Gladstone  and  the  other  Ministers 
were  tossed  to  and  fro  on  the  surging  waves  of  pub 
lic  opinion,  and  pestered  from  day  to  day  in  Parlia 
ment,  while  solicitously  engaged  in  reflecting  how 
best  to  keep  faith  with  the  United  States  and  at  the 
same  time  do  no  prejudice  to  Great  Britain.  If,  at 
that  period,  the  Ministers  said  in  debate  any  thing 
unwise,  any  thing  not  strictly  true  or  just, — Mr.  Glad 
stone  did,  but  Lord  Granville  did  not, — let  it  not  be 
remembered  against  them  personally,  but  charged  to 
the  uncontrollable  difficulties  of  their  position,  and  the 
signal  effectiveness  and  intrinsic  weakness  of  the  or 
ganic  institutions  of  Great  Britain. 

During  all  that  period  of  earnest  discussion  on  both 
sides  of  the  ocean,  it  was  to  me,  as  an  American, 
-matter  of  the  highest  thankfulness  and  gratulation 
and  patriotic  pride,  to  see  the  Government  of  the 
United  States, — President,  Secretary  of  State,  Cabinet, 
Congress, — continue  in  the  even  tenor  of  their  public 
duty,  calm,  unruffled,  self-possessed,  as  the  stars  in 
heaven.  The  Executive  of  the  United  States  is,  it  is 
true,  by  its  very  nature,  a  thoughtful  and  self-con 
tained  power.  Congress,  on  the  other  hand,  is  the 
field  of  debate  and  the  place  where  popular  passions 
come  into  evidence,  as  the  winds  in  the  cave  of  ^Eolus. 
But,  on  this  occasion,  no  more  debate  occurred  in 
either  House  than  that  least  possible  expression  of 
opinion,  which  was  necessary  to  show  accord  with  the 


48  THE   TREATY  OF  WASHINGTON. 

Executive.  Even  the  Opposition,  to  its  honor  be  it 
said,  conducted  itself  with  commendable  reserve  and 
consideration.  How  different  from  all  this  was  the 
spectacle  exhibited  by  the  British  Parliament ! 

ENGLISH  MISCONCEPTION   OF   AMERICAN  SENTIMENT. 

I  contradict,  with  equal  positiveness,  the  suggestion 
that  demagogic  agitation  in  the  United  States  feeds 
itself  largely  on  alleged  hatred  of  Great  Britain.  I 
think  topics  of  international  reproach  are  more  com 
mon  in  England  than  here.  The  steady  current  of 
emigration  from  England,  Scotland,  and  Ireland  to 
the  United  States,  and  especially  at  the  present  time 
from  England,  is  not  a  grateful  subject  of  contempla 
tion  in  Great  Britain.  England  perceives,  but  not 
with  perfect  contenteduess,  that  the  British  race  in 
America  bids  fair  soon  to  exceed  in  numbers  and  in 
power  the  British  race  in  Europe.  And,  above  all, 
the  gradually  increasing  force  of  those  factions  or 
parties  in  Great  Britain,  which  demand  progressive 
enlargement  of  the  basis  of  suffrage,  equal  distribu 
tion  of  representation,  vote  by  ballot,  the  separation 
of  Church  and  State,  subdivision  of  the  great  prop 
erties  in  land,  cessation  of  hereditary  judicial  and  po 
litical  power,  intellectual  and  social  elevation  of  the 
disinherited  classes, — I  say  such  parties  or  factions,  in 
appealing  to  the  institutions  of  the  United  States  as 
a  model,  provoke  criticism  of  those  institutions  on  the 
part  of  the  existing  depositaries  of  property  and  polit 
ical  power.  Owing  to  these,  and  other  causes  which 
might  be  indicated,  it  seems  to  me  that  the  United 


ALABAMA  CLAIMS.  49 

States  encounter  more  criticism  in  Great  Britain  than 
Great  Britain  does  in  the  United  States. 

Moreover,  it  should  be  borne  in  mind  that  much  of 
the  inculpation  of  Great  Britain  which  is  perceived  in 
the  United  States  proceeds  from  British  immigrants, — 
largely  Irish,  but  in  part  Scottish  and  English, — who, 
like  other  Europeans,  are  but  too  prone  to  come  here 
with  all  their  native  political  prejudices  clinging  to 
them;  who  not  seldom  hate  the  Government  of  their 
native  land;  and  who,  of  course,  need  time  to  cease  to 
be  Europeans  in  spirit  and  to  become  simply  Amer 
icans.  And  it  would  not  be  without  interest  in  this 
relation  to  see  how  many  of  sucl»  persons,  in  the  news 
paper  press  or  elsewhere,  say  or  do  things  tending  to 
cause  it  to  be. supposed  that  opinion  in  the  United 
States  is  hostile  to  Great  Britain. 

There  is  one  other  class  of  facts  which  it  is  proper 
to  state  in  this  relation,  and  particularly  proper  for 
me  to  state. 

The  successful  revolution  of  the  thirteen  Colonies 
was  an  event  most  unacceptable,  of  course,  to  England. 
We,  the  victors  in  that  contest,  should  not  murmur  if 
resentful  memories  thereof  lingered  for  some  time  in 
the  breasts  of  the  defeated  party.  I  think,  however, 
such  feelings  have  ceased  to  manifest  themselves  in 
England.  It  is  to  quite  other  causes,  in  my  opinion, 
that  we  are  to  attribute  the  successive  controversies 
between  the  two  countries,  in  which,  as  it  seems  to 
me,  the  greater  wrong  has  in  each  case  been  on  the 
side  of  England.  I  think  we  did  not  afford  her  suffi 
cient  cause  of  complaint  for  continuing  in  hostile  oc- 

D 


50  THE   TREATY   OF   WASHINGTON. 

cupation  of  the  Northwestern  Territory  for  so  many 
years  after  we  had  made  peace.  I  think  she  was 
wrong  in  issuing  the  notorious  Orders  in  Council,  and 
in  the  visitation  of  our  ships  and  impressment  of  our 
seamen,  which  morally  constrained  us,  after  exhaust 
ing  all  other  means  of  redress,  to  have  recourse  to 
war.  I  think  she  was  wrong  in  contending  that  that 
war  extinguished  the  rights  of  coast  fishery  assured 
to  us  by  the  Treaty  of  Independence.  I  think  she 
was  wrong  in  the  controversy  on  the  subject  of  colo 
nial  trade,  which  attained  so  much  prominence  during 
the  Presidency  of  John  Quincy  Adams.  I  think  she 
was  wrong  in  attempting  to  set  up  the  fictitious  Mos 
quito  Kingdom  in  Central  America.  I  think  she  was 
wrong  in  the  so-called  San  Juan  Question.  And  so 
of  other  subjects  of  difference  between  the  two  Gov 
ernments. 

Now,  it  has  happened  to  me,  in  the  course  of  a  long 
public  life,  to  be  called  on  to  deal  officially,  either  in 
Congress,  in  the  Cabinet,  or  at  the  Bar,  with  many  of 
these  points  of  controversy  between  the  two  Govern 
ments,  of  which  it  suffices  to  mention  for  example 
three,  namely  :  1,  the  Question  of  British  Enlistments ; 
2,  the  Hudson's  Bay  Company ;  and  3,  the  Alabama 
Claims. 

In  regard  to  the  first  of  these  questions,  the  United 
States,  and  the  persons  who  administered  the  Govern 
ment,  were  so  clearly  right  that,  although  the  British 
Government,  in  its  Case,  improvidently  brought  into 
controversy  at  Geneva,  by  way  of  counter-accusation, 
the  general  conduct  of  the  United  States  during  the 


ALABAMA   CLAIMS.  51 

war  between  Great  Britain  and  Russia,  and  although, 
we  replied  by  charging  in  response  that  the  only  vio 
lations  of  neutrality  committed  in  the  United  States 
during  that  war  were  committed  by  Great  Britain 
herself,  yet  in  the  subsequent  discussions  not  a  word 
of  self -justification  on  this  point  was  preferred  by 
the  British  Government. 

In  regard  to  the  second  of  the  questions,  a  member 
of  Parliament  [Mr.  Hughes],  in  ignorance  of  the  facts, 
it  is  to  be  presumed,  undertook  to  impugn  the  con 
duct  of  the  Counsel  of  the  United  States,  and  to  draw 
inferences  therefrom  prejudicial  to  the  conduct  of  the 
United  States  in  the  Arbitration  at  Geneva.  In  re 
sponse  to  this  complaint,  it  suffices  to  say  that,  on  oc 
casion  of  a  settlement  of  the  claims  of  the  Hudson's 
Bay  Company  and  of  its  shadow,  the  Puget's  Sound 
Agricultural  Company,  by  mixed  commission,  under 
the  treaty  of  July,  1863,  it  devolved  on  me,  in  behalf 
of  the  United  States,  to  assert,  and  to  prove  to  the 
satisfaction  of  the  Commission,  that  the  pretensions  of 
the  Hudson's  Bay  Company  were  scandalously  un 
just,  and  founded  on  premises  of  exaggeration  and 
usurpation  injurious  to  Great  Britain  and  to  the  Ca 
nadian  Dominion,  as  well  as  to  the  United  States. 
I  have  no  reason  to  regret  or  qualify  any  thing  said 
or  done  by  me  in  that  affair. 

As  to  the  third  of  these  questions,  namely,  the  Ala 
bama  Claims,  it  seems  difficult  to  comprehend  how 
persistent  demand  of  redress  on  the  part  of  the  United 
States  can  be  complained  of  by  any  candid  English 
man  now,  when  the  judgment  of  the  Tribunal  of  Ar- 


52  THE  TREATY   OF  WASHINGTON. 

bitration  establishes  the  fact  of  the  long  denial  of  jus 
tice  by  Great  Britain  in  this  behalf, — a  fact  admitted 
also  by  so  prejudiced  a  person  as  Sir  Alexander  Cock- 
burn,  who  speaks  as  ["  in  some  sense  "  at  least]  "  the 
representative  of  Great  Britain." 

I  confidently  maintain,  therefore,  that  neither  the 
British  Government  nor  the  people  of  Great  Britain 
had  any  just  cause,  in  the  course  of  these  transactions, 
to  find  fault  with  the  spirit,  temper,  or  language  either 
of  the  Government  or  the  Agent  or  Counsel  of  the 
United  States.  To  the  contrary  of  this,  it  seems  to 
me  that  on  our  side  alone  is  the  good  cause  of  com 
plaint  in  these  respects. 

ATTITUDE   OF   THE   AMERICAN    GOVERNMENT. 

As  respects  the  deportment  of  the  two  Governments 
in  this  crisis,  certain  it  is  that  the  conduct  of  that  of 
Great  Britain,  in  resting  upon  the  American  Case  for 
nearly  seven  weeks,  and  then  abruptly  breaking  out, 
in  the  Queen's  speech  from  the  throne  and  in  debate 
in  Parliament,  with  objections  to  that  Case,  without 
previous  statement  thereof  in  diplomatic  communica 
tion,  was  uncourteous  toward  the  United  States. 

The  diplomatic  discussion  which  ensued,  beginning 
with  Lord  Granville's  note  of  February  3, 1872,  and 
terminating  with  the  dispatch  of  Mr.  Fish  of  April  16, 
1872,  may  now  be  read,  not  with  composure  only,  but 
with  supreme  satisfaction,  by  any  citizen  of  the  United 
States.  The  Secretary  of  State  [Mr.  Fish]  demon 
strates  to  conviction  the  utter  baselessness  of  the  pre 
tension  of  the  British  Government  that  the  so-called 


ALABAMA  CLAIMS.  53 

indirect  claims  were  not  within  the  letter  or  spirit  of 
the  Treaty  of  Washington.  And  he  repels  through 
out,  peremptorily  but  dispassionately,  the  call  of  the 
British  Government  on  the  United  States  to  withdraw 
this  class  of  claims  from  the  consideration  of  the  Tri 
bunal.  In  fine,  the  position  of  the  United  States  is 
plainly  expressed  in  different  parts  of  the  dispatches 
of  Mr.  Fish,  as  follows : 

"  They  [the  United  States]  desire  to'maintain  the  jurisdiction 
of  the  Tribunal  of  Arbitration  over  all  the  unsettled  claims,  in 
order  that,  being  judicially  decided,  and  the  questions  of  law 
involved  therein  being  adjudicated,  all  questions  connected 
with  or  arising  out  of  the  Alabama  Claims,  or  *  growing  out  of 
the  acts '  of  the  cruisers,  may  be  forever  removed  from  the  pos 
sibility  of  disturbing  the  perfect  harmony  of  relations  between 
the  two  countries.  .  .  . 

u  What  the  rights,  duties,  and  true  interests  of  both  the  con 
tending  nations,  and  of  all  nations,  demand  shall  be  the  extent, 
and  the  measure  of  liability  and  damages  under  the  Treaty,  is 
a  matter  for  the  supreme  determination  of  the  Tribunal  estab 
lished  thereby. 

"Should  that  august  Tribunal  decide  that  a  State  is  not  lia 
ble  for  the  indirect  or  consequential  results  of  an  accidental  or 
unintentional  violation  of  its  neutral  obligations,  the  United 
States  will  unhesitatingly  accept  the  decision. 

"  Should  it,  on  the  other'  hand,  decide  that  Great  Britain  is 
liable  to  this  Government  for  such  consequential  results,  they 
have  that  full  faith  in  British  observance  of  its  engagements  to 
expect  a  compliance  with  the  judgment  of  the  Tribunal,  which 
a  solemn  Treaty  between  the  two  Powers  has  created  in  order 
to  remove  and  adjust  all  complaints  and  claims  on  the  part  of 
the  United  States." 

The  American  Government  could  not  avoid  feeling 
that  the  public  discussion,  which  the  British  Minis 
ters  had  seen  fit  to  excite,  or,  at  any  rate,  to  aggravate, 


54:          ,  THE  TREATY  OF  WASHINGTON. 

and  "the  discourteous  tone  and  minatory  intimations 
of  the  Ministry,"  imposed  on  the  United  States  a  dif 
ferent  line  of  action  from  that,  which  might  have  been 
adopted  by  them  in  response  to  a  calm  presentation 
by  the  British  Government  of  its  construction  of  the 
Treaty. 

In  this  relation  there  is  another  class  of  facts  which, 
as  it  seems  to  me,  deserves  mention. 

Of  the  five  American  Commissioners  engaged  in 
the  negotiation  of  the  Treaty  of  Washington,  two, 
the  Secretary  of  State  [Mr.  Fish]  and  our  Minister 
at  London  [General  Schenck],  wrere  officially  occu 
pied  in  discussing  the  question  on  the  American  Case 
raised  by  the  British  Government.  The  published 
dispatches  show  with  what  signal  ability  they  dis 
charged  this  delicate  duty.  Meanwhile,  the  three 
other  Commissioners,  Mr.  Justice  Nelson,  Mr.  Hoar, 
and  Mr.  Williams,  although  impliedly  accused  on  the 
other  side  of  taking  some  advantage  of  the  unsophis 
ticated  innocence  and  simplicity  of  the  British  Com 
missioners,  yet  maintained  perfect  self-control  in  the 
matter,  speaking  only  when  officially  called  upon  to 
speak,  and  otherwise  leaving  the  subject  where  it  be 
longed, — in  the  hands  of  their  Government. 

The  conduct,  on  the  other  hand,  of  some  of  the 
British  Commissioners  was  less  reserved  than  that  of 
the  American  Commissioners.  Professor  Bernard  got 
completely  off  the  track  of  reason  and  sense  in  a  lect 
ure  which  he  delivered  at  Oxford.  Sir  Stafford 
Northcote  let  off  a  very  inconsiderate  speech  at  Ex 
eter.  And  Sir  Edward  Thornton  made  a  not  very 


ALABAMA  CLAIMS.  55 

considerate  one  at  New  York.  But  Earl  cle  Grey 
and  Ripon,  who  had  now  become  Marquess  of  Ripon, 
deported  himself  with  admirable  dignity.  It  was,  in 
deed,  wittily  said,  or  reported  to  have  been  said,  by 
Mr.  Lowe,  that  Lord  Ripon  was  going  about  very  sick 
at  the  stomach  of  a  marquisate,  which  he  would  be 
glad  to  throw  up ;  but  the  reproach  was  wholly  un 
deserved.  Lord  Ripon  manfully  maintained  silence 
while  to  speak  would 'have  been  unwise;  when  at 
length  it  became  expedient  to  speak,  he  did  so  with 
discretion  and  with  judiciousness,  beyond  what  ap 
peared  in  the  speeches  of  some  other  members  of  the 
Government. 

ACTION   OF   THE  AMERICAN   AGENT   AND   COUNSEL. 

Whilst  all  these  discussions  were  going  on  in  Great 
Britain  and  the  United  States,  we,  the  Agent  and 
Counsel  of  the  United  States,  were  busily  occupied, 
partly  at  Washington  but  chiefly  at  Paris,  in  the 
study  of  the  British  Case  and  the  preparation  of  the 
American  Counter-Case.  We  had  fixed  on  Paris  for 
our  head-quarters,  as  a  neutral  city,  as  a  great  centre 
of  international  jurisprudence  and  diplomacy,  and  as 
a  place  in  easy  communication  with  London  and  with 
Washington. 

From  this  ground  of  vantage  we  could  observe 
and  estimate  correctly  the  current  of  discussion  in 
America,  in  Great  Britain,  and  on  the  Continent  of 
Europe. 

Speaking  for  myself,  at  least,  let  me  say,  it  appear 
ed  to  me  that  much  of  what  was  beino;  said  in  En- 


56  THE  TREATY  OF  WASHINGTON. 

gland,  whether  in  Parliament  or  in  the  Press,  was  un 
seasonable  or  indiscreet;  much  of  it  factious  toward 
the  British  Government  itself;  much  of  it  disrespect 
ful  to  the  American  Government ;  but  none  of  it  of 
any  ultimate  importance  or  consequence  in  regard  to 
either  Government,  for  the  following  reasons : 

1.  Both  Governments  sincerely  desired  peace.  Great 
Britain  could  never  have  retreated  from  the  Arbitra 
tion  in  violation  of  the  Treaty,  whatever  the  Press 
might  say,  and  whoever  should  be  in  power  as  Min 
ister. 

2.  Freedom  of  debate  is  essential  to  freedom  of  in 
stitutions.     To  be  sure,  the  Pi-ess  in  Great  Britain, 
and  somewhat,  but  less  so,  in  the  United  States,  is 
prone  to  take  upon  itself  rather  lofty  airs,  and  to 
speak  of  public  affairs  quite  absolutely,  as  if  it  were 
the  Government.     But  nobody  is  deceived  by  this, 
not  even  the  Press  itself.     We,  the  English-speaking 
nations,  thank  heaven,  possess  the  capability  of  living 
in  the  atmosphere  of  oral  and  written  debate.    It  was 
safe  to  predict  that  howmuchsoever  Mr.  Gladstone 
and  Lord  Granville  might  feel  annoyed  by  the  din 
of  words  around  them,  it  would  not  induce  them  to 
break  faith  with  the  United  States. 

3.  It  was  not  the  voice  of  the  English  Press  wrhich 
could  seriously  affect  us.     We  looked  rather  to  the 
state  of  opinion  in  the  French,  German,  and  Italian 
speaking  countries  of  Europe,  which,  on  the  whole, 
though  differing  as  to  the  legal  right  of  the  United 
States  to  recover  on  the  national  claims,  yet  decisive 
ly  agreed  with  us  in  affirming  that  those  claims  were 


ALABAMA  CLAIMS.  57 

comprehended  within  the  scope  of  the  Treaty  as  main 
tained  by  the  United  States. 

"What  Europe  dreaded,  what  all  European  opinion 
sought  to  prevent,  was  a  rupture  between  Great  Brit 
ain  and  the  United  States,  to  disturb  the  money- 
market  of  Europe,  and  impede  the  payment  by  France 
of  the  indemnity  due  to  Germany.  And  all  men  saw 
that  the  United  States  must  and  would  resent  the 
refusal  by  Great  Britain  to  observe  the  stipulations 
of  the  Treaty  of  Washington. 

PRESENTATION  OF  COUNTER-CASES. 

Such  were  the  circumstances,  in  the  presence  of 
which  arrived  the  time,  namely,  the  loth  of  April,  at 
which  the  two  Governments  were  to  file  at  Geneva 
their  respective  Counter-Cases. 

The  British  Government  was  so  solicitous  to  fulfill 
on  its  parjb  all  the  stipulations  of  the  Treaty,  that  it 
caused  special  inquiry  to  be  made  whether  the  Amer 
ican  Government  had  any  objection  to  Great  Brit 
ain  filing  her  Counter-Case  without  prejudice  to  her 
position  regarding  consequential  damages;  to  which 
Mr.  Fish  replied  that,  the  British  Government  was 
bound  to  file  its  Counter-Case,  but  its  doing  so 
would  not  prejudice  any  position  it  had  taken,  nor 
affect  any  position  of  the  United  States. 

Accordingly,  on  the  15th  of  April, 'die  Cobnter- 
Cases  of  Great  Britain  and  the  United  States  were 
duly  filed,  with  express  reservation  of  all  the  rights 
of  both  Governments. 

The  British  Counter-Case,  cpnsisting  of  four  vol- 


58  THE  TREATY  OF  WASHINGTON. 

umes  folio,  contains  little  new  matter,  being  in  part, 
at  least,  defensive  argument  in  response  to  the  Amer 
ican  "  Case." 

The  American  Counter-Case,  consisting  of  two 
volumes  folio,  replies  argumentatively  to  the  British 
"Case,"  and  brings  forward  a  large  body  of  docu 
mentary  proofs,  responsive  to  matters  contained  in 
that  "  Case,"  which,  although  utterly  foreign  to  the 
question  at  issue,  required  to  be  met,  because  con 
sidered  material  by  Great  Britain,  namely,  allegations 
of  default  on  the  part  of  the  United  States  in  the 
execution  of  their  own  neutrality  laws,  to  the  preju 
dice  of  other  Governments. 

The  introduction  of  all  this  matter  into  the  British 
Case,  the  iteration  of  it  in  the  British  Counter-Case 
and  the  British-  Argument,  and  the  extreme  promi 
nence  given  to  it,  as  we  shall  hereafter  see,  by  the 
British  Arbitrator,  serve*  to  illustrate  the  singular 
unreasonableness  and  injustice  of  the  angry  com 
plaints  emitted  in  England  against  the  American 
Case. 

The  American  Case  contains  no  suggestion  which 
is  not  strictly  pertinent  to  the  issues  raised  by  the 
Treaty.  It  discusses  the  conduct  of  the  British  Gov- 
eminent  relatively  to  the  United  States  during  our 
Civil  War,  with  strict  application  to  the  "Alabama 
Claims."  It  charges  that,  in  those  transactions,  the 
British  Government  w^as  guilty  of  culpable  omission 
to  observe  the  requirements  of  the  law  of  nations  as 
respects  the  United  States,  and  with  responsible  neg 
ligence  in  the  non-execution  of  the  neutrality  laws  of 


ALABAMA   CLAIMS.  59 

Great  Britain.  That  was  the  very  question  present 
ed  by  the  Treaty. 

Great  Britain  professed  to  be  so  much  offended  by 
the  character  of  certain  of  the  proofs  adduced  in  the 
Ainerican.Case, — rigorously  pertinent  to  the  question 
as  all  those  proofs  were, — that  she  would  not  suffer 
any  appropriate  answer  to  those  proofs  to  be  brought 
forward  in  her  Counter-Case  or  in  her  Argument :  it 
was  not  compatible  with  self-respect, — it  would  be 
giving  dignity  to  undignified  arguments, — we  were 
told  by  the  British  Press.  Meanwhile,  the  very  mat 
ter  which  the  British  Government  could  not  conde 
scend  to  notice  was  both  material  and  important  to 
such  a  degree  as  very  much  to  inflame  the  temper  and 
exercise  the  ingenuity  of  Sir  Alexander  Cockbum, 
the  "  representative"  of  Great  Britain  at  Geneva. 

Now,  the  American  Case,  if  conceived  in  any  other 
spirit  than  that  of  just  and  fair  exposition  of  the  pre 
cise  issue, — question,  that  is,  whether  the  British  Gov 
ernment  had  or  had  not  incurred  responsibility  for 
its  want  of  due  diligence  in  the  matter  of  Confederate 
cruisers  fitted  out  in  the  ports  of  Great  Britain, — I 
say,  if  the  American  Government,  in  the  preparation 
of  its  Case,  had  not  been  animated  by  the  spirit  of 
perfect  fairness  and  justness,  it  might  have  gone  into 
the  inquiry  of  the  political  conduct  of  Great  Britain 
in  other  times,  and  with  reference  to  other  nations,  in 
the  view  of  imputing  to  her  habitual  disregard  of  the 
law  of  nations  in  illustration  of  her  present  conduct 
toward  the  United  States.  We  might  have  charged 
that,  while  her  statesmen  contend  that  they  could  do 


CO  TriE  TREATY  OF  WASHINGTON. 

nothing  outside  of  an  Act  of  Parliament,  they  had  no 
such  Act  until  1819,  and  were  therefore,  prior  to  that 
time,  confessedly  impotent,  and  we  might  have  added 
willfully  so,  to  observe  the  duties  of  neutrality ;  we 
might  have  scrutinized  her  national  history  to  select 
conspicuous  examples  of  her  acts  of  violence,  in  dis 
regard  of  the  law  of  nations,  against  numerous  States, 
including  ourselves;  we  might  have  appealed  to  ev 
ery  volume  of  international  law  in  existence,  from  the 
time  of  Grotius  to  this  day,  and  cited  page  after  page 
to  the  conclusion  of  the  unjust  international  policy 
of  Great  Britain ;  and  we  might  have  argued  from  all 
this  to  infer  intentional  omission  of  the  British  Gov 
ernment  to  prevent  the  escape  of  the  Alabama  and 
the  Florida. 

But  such  arguments,  you  will  say,  would  have  been 
forced,  remote,  of  doubtful  relevance,  and  of  a  nature 
offensive  to  England.  Be  it  so :  they  would,  if  you 
please,  have  been  irrelevant,  impertinent,  offensive. 
And  no  such  arguments  are  found  in  the  American 
Case. 

But  such  are  the  arguments  which  pervade  the 
British  Case,  Counter- Case,  and  Argument,  and  the 
opinions  of  the  British  member  of  the  Tribunal.  In 
stead  of  defending  its  own  conduct  in  the  matter 
at  issue,  the  British  Government  travels  out  of  the 
record  to  find  fault  with  the  conduct  of  the  United 
States  at  other  times,  and  with  respect  to  other  na 
tions.  It  presumes  to  take  upon  itself  the  function 
of  personating  Spain,  Portugal,  Nicaragua,  and  to  drag 
before  the  Tribunal  at  Geneva  controversies  between 


TJJE        •'/" 
ALABAMA   CLAIMS.        II  U  N  I  V  E  Bfi  I  T  1 

OiT 


us  and  other  States,  with,  which  that 
no  possible  concern, — which  it  could  not  pretend  t(f 
judge, — and  of  such  obvious  irrelevancy  and  imperti 
nence  that  not  one  of  the  Arbitrators  condescended 
to  notice  them  except  Sir  Alexander  Cockburn. 

The  presentation  in  the  British  Case  of  considera 
tions  of  this  order,  worthless  and  absurd  as  argu 
ment,  and  wantonly  offensive  to  the  United  States, 
was,  in  my  judgment,  an  outrageous  act,  compared 
with  which,  in  possible  susceptibility  of  blame,  there 
is  nothing  to  be  found  in  any  of  the  affirmative  doc 
uments  presented  by  the  American  Government. 

It  was  the  cause  of  a  singularly  perverse  incident, 
namely,  complaint  of  the  British  Press  against  the 
American  Argument  for  imputed  unkincbtess  in  al 
luding  to  subjects,  which  had  been  forced  upon  our 
attention  by  the  British  Case. 

I  mention  these  circumstances  for  the  purpose  of 
showing  how  relatively  unjust  it  was  to  impute  of- 
fensiveness  of  spirit  and  language  to  the  American 
Case  in  view  of  the  much  more  objectionable  things 
in  the  British  Case ;  and  for  the  further  purpose  of 
pertinently  stating  that  it  was  undignified  for  Great 
Britain  to  complain  of  the  manner  in  which  the  Agent 
or  Counsel  of  the  United  States  might  see  fit  to  ar 
gue  our  cause,  as  it  would  be  for  the  American  Gov 
ernment  to  undertake  to  prescribe  limits  of  discre 
tion  in  this  respect  to  the  Agent  or  Counsel  of  Great 
Britain. 

Thus,  the  15th  of  April,  looked  forward  to  with  so 
much  apparent  dread  by  the  British  Government, 


62.  THE  TREATY  OF  WASHINGTON. 

passed  away,  leaving  the  great  question  unsettled,  in 
what  manner  ultimately  to  deal  with  the  claim  for 
national  losses  preferred  by  the  United  States. 

NEGOTIATIONS   FOR  A   SUPPLEMENTAL   TREATY. 

A  new  series  of  events  then  happened,  which  occu 
pied  the  period  intervening  between  the  15th  of  April 
and  the  loth  of  June. 

It  occurred  to  the  two  Governments  that  the  diffi 
culty  might  be  disposed  of  by  the  exchange  of  diplo 
matic  notes,  which,  in  laying  down  a  definite  rule  of 
reciprocal  international  right  on  the  subject  of  such 
losses,  should  reserve  or  leave  unimpaired  the  present 
pretensions  of  both  Governments.  The  British  Gov 
ernment  would  not  admit  that  it  was  the  intention 
of  the  Treaty  to  cover  national  .losses ;  the  United 
States  insisted  that  it  was,  and  refused  to  do  any  act 
incompatible  with  this  construction  of  the  Treaty; 
and,  therefore,  they  would  not  withdraw  any  part  of 
the  American  Case,  nor  disavow  the  opinion  that  it 
was  within  the  province  of  the  Arbitrators  to  consid 
er  all  the  claims,  and  to  determine  the  liability  of 
Great  Britain  for  all  the  claims,  which  had  been  put 
forward  by  the  United  States.  But  the  American 
Government  had  not  asked  for  pecuniary  damages  in 
its  "Case"  on  account  of  that  part  of  the  claims  calle'd 
the  indirect  losses;  it  only  desired  a  judgment  there 
on,  which  would  remove  them  for  all  future  time  as  a 
cause  of  difference  between  the  two  Governments. 
To  hold  that  this  class  of  claims  was  not  disposed  of 
by  the  Treaty, — that  is,  was  not  a  subject  for  the  con- 


ALABAMA  CLAIMS.  63 

sideration  of  the  Tribunal  of  Arbitration, — was  to  infer 
that  they  remained  open  and  unadjusted,  and  suscep 
tible  of  being  hereafter  brought  forward  anew  by  the 
United  States  as  an  object  of  reclamation  against 
Great  Britain.  One  great  inducement  to  the  Treaty 
would  thus  be  defeated,  namely,  the  establishment  of 
perfect  concord  and  peace.  In  view  of  which  it  was 
thought  expedient  to  endeavor  to  adjust  the  present 
dispute  by  informal  stipulations  on  the  part  of  the 
two  Governments. 

This  well-intentioned  effort  failed,  because  of  the 
persistent  contention  of  the  British  Government  that 
the  Treaty  excluded  from  the  Arbitration  the  claims 
for  national  losses  advanced  by  the  United  States. 

Further  reflection  on  the  subject  satisfied  the  Amer 
ican  Government  that  nothing  short  of  a  new  treaty 
could  dispose  of  the  question  on  the  premises  of  the 
pending  negotiation,  it  being  clear  that  the  President 
of  the  United  States  could  not  of  himself  ivithdmiv 
claims  which  were  in  his  opinion  justified  by  the 
Treaty  of  Washington. 

Thereupon  the  President  requested  of  the  Senate 
an  expression  of  their  disposition  in  regard  to  advis 
ing  and  consenting  to  the  formal  adoption  of  an  arti 
cle  of  treaty  proposed  by  the  British  Government,  to 
the  effect  of  stipulating  that  be  would  make  no  claim 
on  the  part  of  the  United  States  in  respect  of  the  so- 
called  indirect  losses  before  the  Tribunal  of  Arbitra 
tion,  in  consideration  of  an  agreement  between  the 
two  Governments,  the  essence  of  which  was  set  forth 
in  a  preamble  to  the  effect  that 


64  THE  TREATY  OF   WASHINGTON. 

"  Such  indirect  claims  as  those  for  national  losses  stated  in 
the  Case  presented  on  the  part  of  the  Government  of  the  United 
States  .  .  .  should  not  be  admitted  in  principle  as  growing  out 
of  the  acts  committed  by  particular  vessels,  alleged  to  have 
been  enabled  to  commit  depredations  on  the  shipping  of  a  bel 
ligerent  by  reason  of  such  want  of  due  diligence  in  the  per 
formance  of  neutral  obligations  as  that  which  is  imputed  by  the 
United  States  to  Great  Britain :" 

which  proposed  agreement  the  preamble  proceeds  to 
state,  in  the  form  of  t\vo  separate  declarations, — one 
by  Great  Britain  and  one  by  the  United  States, — 
each  of  them  intelligible  only  by  reference  to  pre 
vious  parts  of  the  preamble :  the  whole  to  the  con 
clusion  that  the  President  shall  make  no  claim,  on 
the  part  of  the  United  States,  in  respect  of  the  indi 
rect  claims  as  aforesaid,  before  the  Tribunal  of  Arbi 
tration  at  Geneva. 

The  Senate,  thinking  that  the  recitals  in  the  pre 
amble  were  not  sufficiently  explicit  to  furnish  to  the 
United  States  satisfactory  basis  of  transaction,  pro 
posed  the  following  substitute : 

"Whereas  both  Governments  adopt  for  the  future  the  prin 
ciple  that  claims  for  remote  or  indirect  losses  should  not  be 
admitted  as  the  result  of  failure  to  observe  neutral  obligations, 
so  far  as  to  declare  that  it  will  hereafter  guide  the  conduct  of 
both  Governments  in  their  relations  with  each  other.  Now, 
therefore,"  etc. 

But  the  Senate's  redaction  of  the  article  rendered 
its  meaning  too  clear  to  be  agreeable  to  the  British 

o  o 

Government,  which,  as  ,was  shrewdly  said  of  it  in 
Paris  at  the  time,  doubted  whether  release  from  claim 
of  reparation  for  the  present  wrong  done  by  Great 


ALABAMA   CLAIMS.  65 

Britain  to  the  United  States  might  not  be  purchased 
too  dearly  by  conceding  to  the  United  States,  in  con 
sideration  thereof,  indefinite  and  unlimited  exemption 
from  responsibility  for  wrongs  of  the  same  nature  to 
be  inflicted  in  all  future  time  by  the  United  States 
on  Great  Britain. 

Further 'interchange  of  dispatches  on  this  subject 
followed,  the  British  Government  insisting  on  modifi 
cation  of  the  terms  of  arrangement  proposed  by  the 
Senate. 

But  Congress  had  now  adjourned.  The  15th  of 
June  was  impending,  on  which  day  the  United  States 
must  of  necessity  present  their  final  argument  or  lose 
their  hold  on  the  Treaty.  If,  at  the  commencement 
of  the  difficulty,  the  British  Government  had  proposed 
to  the  American  Government  to  agree  to  postpone 
the  proceedings  of  the  Tribunal  and  take  time  for 
negotiation  in  the  usual  way,  a  new  treaty  might 
have  been  concluded  as-  contemplated  by  the  two 
Governments.  Such  a  treaty,  requiring  careful  con 
sideration  of  phraseology,  with  discussion  and  expla 
nations  regarding  the  same,  could  not  be  concluded 
in  haste  by  means  of  telegraphic  communication  be 
tween  London  and  Washington. 

The  spectacle  exhibited  by  the  two  Governments 
at  this  time  was  one  of  profound  interest  to  the  whole 
world.  They  were  inspired  by  friendly  sentiments  on 
each  side.  They  differed  in  regard  to  the  construction  / 
of  a  treaty  which  neither  desired  to  break.  Diplo- 
matic  correspondence  had  failed  to  bring  them  into 
concord  of  opinion.  They  endeavored  to  reconcile 

E 


66  THE  TREATY  OF  WASHINGTON. 

this  difference  by  supplemental  treaty.  Only  a  few 
weeks  remained  in  which  to  negotiate ;  and  the 
parties  were  separated  by  thousands  of  miles  of 
ocean.  It  was  necessary,  therefore,  to  negotiate,  if  at 
all,  by  telegraph, — an  operation  quite  as  novel  as  had 
been  that  of  conducting  the  business  of  government 
in  France  by  means  of  pigeons  or  balloons  during  the 
siege  of  Paris.  But,  before  it  was  possible  for  the 
parties  to  conclude  a  treaty  by  telegraph,  the  fatal 
day  arrived,  greatly  to  the  embarrassment  of  the 
British  Government. 

PRESENTATION  OF  ARGUMENTS  FOR  THE  UNITED  STATES. 

For  the  course  of  the  United  States  in  this  exigen 
cy  was  plain  before  them:  it  was  to  present  their 
final  Argument  to  the  Tribunal  of  Arbitration,  in  con 
formity  with  their  own  conception  of  their  rights,  just 
as  if  there  were  no  controversy  on  the  point  between 
them  and  Great  Britain. 

The  President  of  the  United  States  was  immova 
bly  fixed  in  the  purpose  not  to  withdraw  the  contro 
verted  claims,  nor  to  abstain  from  making  claim  be 
fore  the  Tribunal  in  respect  to  the  so-called  indirect 
losses,  except  in  consideration  of  a  new  treaty  regard 
ing  the  same,  satisfactory  to  himself  and  to  the  Senate 
of  the  United  States. 

In  a  dispatch  of  the  Secretary  of  State  to  the  Min 
ister  at  London,  of  the  28th  of  May,  1872,  the  induce 
ment  and  object  of  the  United  States,  in  persisting  to 
retain  these  claims  before  the  Tribunal,  are  summa 
rily  stated  as  follows : 


ALABAMA  CLAIMS.  67 

1.  "The  right  under  the  Treaty  to  present  them. 

2.  "  To  have  them  disposed  of  and  removed  from  further  con 
troversy. 

3.  "To  obtain  a  decision  either  for  or  against  the  liability  of 
a  neutral  for  claims  of  that  description. 

4.  "If  the  liability  of  a  neutral  for  such  claims  is  admitted 
in  the  future,  then  to  insist  on  payment  by  Great  Britain  for 
those  of  the  past. 

5.  "  Having  a  case  against  Great  Britain  to  have  the  same 
principle  applied  to  it  that  may  in  the  future  be  invoked  against 
the  United  States." 

Of  these  considerations,  the  last  four,  it  is  obvious, 
are  the  complete  justification  of  the  insertion  of  our 
national  claims  in  the  Treaty  and  of  their  presenta 
tion  in  the  "  Case." 

Hence  the  duty  of  the  Agent  and  Counsel  of  the 
United  States,  having  charge  of  the  judicial  investi 
gation  pending  before  the  Tribunal  of  Arbitration, 
remained  the  same  in  the  interval  between  December 
15th,  1871,  and  June  15th,  1872,  whatever  diplomatic 
discussions  or  negotiations  might  be  going  on  between 
the  two  Governments.  Our  instructions  were  defi 
nite  and  peremptory,  as  the  British  Government  well 
understood,  to  prepare  the  Counter-Case  for  the  Unit 
ed  States,  and  the  final  Argument,  on  the  premises 
of  the  Treaty  as  construed  by  the  United  States  and 
as  explained  in  the  American  Case.  Our  Counter- 
Case  was  prepared  accordingly,  as  already  stated,  and 
filed  in  English  and  in  French  before  the  Tribunal. 
And  in.  like  manner  we  prepared  our  final  Argument. 

This  Argument,  consisting  of  an  octavo  volume  of 
495  pages,  after  discussing  fully  the  various  questions 
of  fact  and  of  law  involved  in  the  submission  to  arbi- 


68  THE  TREATY  OF  WASHINGTON. 

tration,  proceeds  to  examine  the  particular  claims,  na 
tional  as  well  as  individual, — to  maintain  the  jurisdic 
tion  of  the  Tribunal  over  both  cla'sses  of  claims, — and 
to  argue  the  nature  and  degree  of  the  responsibility 
of  Great  Britain  to  the  United  States  in  the  premises. 
In  fine,  the  Argument  is  co-extensive  with  the  "  Case." 

We  repaired  to  Geneva  in  due  time,  and  at  the 
meeting  of  the  Tribunal  on  the  15th  we  presented 
our  Argument  as  required  by  the  Treaty,  and,  for  the 
better  information  of  the  Tribunal,  in  French  as  well 
as  in  English.  That  is  to  say,  the  Government  of 
the  United  States,  through  the  means  of  its  official 
Agent,  complied  with  that  last  command  of  the  Trea 
ty  of  Washington,  in  virtue  of  which  the  Tribunal  of 
Arbitration  became  formally  seized  and  possessed  of 
all  our  claims,  national  as  well  as  private,  precisely  as 
if  no  controversy  on  the  subject  existed  between  the 
two  Governments.  The  United  States  were  in  condi 
tion  to  invoke  the  judgment  of  the  Tribunal,  whether 
Great  Britain  appeared  or  not ;  for  Counsel  had  am 
ple  authority  of  legal  doctrine  at  hand  to  show  that 
the  Tribunal  would  have  power  to  act  even  in  the 
absence  of  Great  Britain. 

In  the  anticipation  of  this  contingency,  the  British 
Government  requested  that  of  the  United  States  to 
concur  in  making  a  joint  application  to  the  Tribunal 
for  an  adjournment  of  eight  months,  in  order  to  afford 
to  the  two  Governments  sufficient  time  for  further 
negotiation.  Mr.  Fish  replied  that  the  Government 
of  the  United  States  had  no  reason  to  desire  such  ad 
journment,  although  the  Government  intended,  and 


ALABAMA  CLAIMS.  69 

instructed  its  Agent,  to  assent  to  a  motion  for  ad 
journment  on  the  part  of  Great  Britain,  provided  the 
British  Argument  were  filed  in  good  faith,  without 
offensive  notice,  or  other  objectionable  accompani 
ment. 

Thus  it  became  necessary  for  the  British  Govern 
ment  to  decide  for  itself  how  to  act  in  the  premises. 
The  course  adopted  by  it  was  to  withhold  its  Argu 
ment,  and  to  file  a  statement,  setting  forth  the  recent 
negotiations  for  the  solution  of  the  difficulty  between 
the  two  Governments,  and  the  hope  that,  if  time  were 
afforded,  such  a  solution  might  be  found  practicable ; 
and  thereupon  to  move  an  adjournment  of  eight 
months,  with  reserve  of  all  rights  in  the  event  of  an 
agreement  not  being  finally  arrived  at,  as  expressed  in 
the  note  which  accompanied  the  British  Counter-Case. 

DECISION   OF  THE  ARBITRATORS  RESPECTING  NATIONAL 

LOSSES. 

These  acts  having  been  performed/the  Arbitrators 
adjourned,  first  to  the  17th,  and  then  to  the  19th  of 
June,  in  order  to  afford  time  for  reflection  to  them 
selves  and  to  the  two  Governments. 

It  will  be  taken  for  granted  that  in  the  interval  be 
tween  the  15th  and  the  19th  of  June  communications 
by  telegraph  passed  between  the  respective  Agents 
and  their  Governments,  and  consultations  took  place 
between  the  Counsel  of  both  sides  and  the  respective 
Agents,  either  orally  or  in  writing,  and,  with  more  or 
less  formality,  among  the  Arbitrators,  the  result  of 
which  was  announced  by  Count  Scions  5?  follows : 


70  THE   TREATY   OF  WASHINGTON. 

"The  Arbitrators  do  not  propose  to  express  or  imply  any 
opinion  upon  the  point  thus  in  difference  between  the  two 
Governments  as  to  the  interpretation  or  effect  of  the  Treaty,  A 
but  it  seems  to  them  obvious  that  the  substantial  object  of 
the  adjournment  must  be  to  give  the  two  Governments  an  opj  ^ 
portunity  of  determining  whether  the  claims  in  question  shall 
or  shall  not  be  submitted  to  the  decision  of  the  Arbitrators, 
and  that  any  difference  between  the  two  Governments  on  this 
point  may  make  the  adjournment  unproductive  of  any  useful 
effect,  and,  after  a  delay  of  many  months,  during  which  both 
nations  may  be  kept  in  a  state  of  painful  suspense,  may  end  in 
a  result  which  it  is  to  be  presumed  both  Governments  would 
equally  deplore,  that  of  making  this  arbitration  wholly  abor- 

'  tive.yThis  being  so,  the  Arbitrators  think  it  right  to  state 
that,  after  the  most  careful  perusal  of  all  that  has  been  urged 
on  the  part  of  the  Government  of  the  United  States  in  respect 
of  these  claims,  they  have  arrived,  individually  and  collective 
ly,  at  the  conclusion  that  these  claims  do  not  constitute,  upon 
the  principles  of  international  law  applicable  to  such  cases, 
good  foundation  for  an  award  of  compensation  or  computation 
of  damages  between  nations ;  and  should,  upon  such  princi 
ples,  be  wholly  excluded  from  the  consideration  of  the  Tribu 
nal  in  making  its  award,  even  if  there  were  no  disagreement 
between  the  two  Governments  as  to  the  competency  of  the 
Tribunal  to  decide  thereon.^  With  a  view  to  the  settlement 

,of  the  other  claims,  to  the  consideration  of  which  by  the  Tri 
bunal  no  exception  has  been  taken  on  the  part  of  Her  Britan 
nic  Majesty's  Government,  the  Arbitrators  have  thought  it  de 
sirable  to  lay  before  the  parties  this  expression  of  the  views 
they  have  formed  upon  the  question  of  public  law  involved,  in 
order  that,  after  this  declaration  by  the  Tribunal,  it  may  be 
considered  by  the  Government  of  the  United  States  whether 
any  course  can  be  adopted  respecting  the  first  -  mentioned 
claims  which  would  relieve  the  Tribunal  from  the  necessity  of 
deciding  upon  the  present  application  of  Her  Britannic  Maj 
esty's  Government." 

Count  Sclopis  added  that  it  was  the  intention  of 
the  Tribunal  that  this  statement  should  be  co'nsid- 


ALABAMA  CLAIMS.  71 

ered  for  the  present  to  be  confidential, — that  is,  sub 
ject  to  the  discretion  of  either  of  the  two  Govern 
ments. 

But  what  is  the  "  question  of  public  law  involved  ?" 
Is  it  the  question  of  claim  for  indirect  or  consequen 
tial  damages,  as  argued  by  the  British  Government  ? 
By  no  means. 

Observe,  no  suggestion  of  any  distinction  between 
direct  and  indirect  claims  is  to  be  found  in  the  decla 
ration  of  the  Arbitrators.  And  their  declaration  can 
not  be  explained  by  reference  to  any  such  order  of 
ideas. 

The  significant  words  are :  u  These  claims  do  not 
constitute,  upon  the  principles  of  international  law 
applicable  to  such  cases,  good  foundation  for  an  award 
of  compensation  or  computation  of  damages  between 
nations." 

"Why  do  they  not  ?  Because  they  are  indirect  ? 
Because  they  are  consequential  ?  No  such  objection 
is  intimated. 

But  although,  in  making  this  declaration,  a  mere 
conclusion  of  mind,  the  Arbitrators  abstained  at  the 
time  from  assigning  any  reasons  for  such  conclusion, 
yet  they  supplied  this  omission  subsequently,  as  we 
shall  plainly  see  when  we  come  to  review  the  ensem 
ble  of  all  the  acts  of  the  Tribunal.  We  shall  then  be 
able  to  appreciate  the  importance  and  value  of  this 
declaration  to  the  United  States. 

The  Counsel  of  the  United  States  advised  the  ac 
ceptance  of  this  declaration  by  the  Government,  as 
follows : 


72  THE  TREATY  OF   WASHINGTON. 

"  We  are  of  opinion  that  the  announcement  this  day  made 
by  the  Tribunal  must  be  received  by  the  United  States  as  de 
terminative  of  its  judgment  on  the  question  of  public  law  in 
volved,  as  to  which  the  United  States  have  insisted  on  taking 
the  opinion  of  the  Tribunal.  "We  advise,  therefore,  that  it 
should  be  submitted  to,  as  precluding  the  propriety  of  further 
insisting  upon  the  claims  covered  by  this  declaration  of  the 
Tribunal,  and  that  the  United  States,  with  a  view  of  maintain 
ing  the  due  course  of  the  arbitration  on  the  other  claims  with 
out  adjournment,  should  announce  to  the  Tribunal  that  the 
said  claims  covered  by  its  opinion  will  not  be  further  insisted 
upon  before  the  Tribunal  by  the  United  States,  and  may  be 
excluded  from  all  consideration  by  the  Tribunal  in  making  its 
award." 

In  response,  the  Secretary  of  State  communicated 
the  determination  of  the  President,  as  follows : 

"  I  have  laid  your  telegrams  before  the  President,  who  di 
rects  me  to  say  that  he  accepts  the  declaration  of  the  Tribunal 
as  its  judgment  upon  a  question  of  public  law,  which  he  had 
felt  that  the  interests  of  both  Governments  required  should 
be  decided,  and  for  the  determination  of  which  he  had  felt  it 
important  to  present  the  claims  referred  to  for  the  purpose  of 
taking  the  opinion  of  the  Tribunal. 

"  This  is  the  attainment  of  an  end  which  this  Government 
had  in  view  in  the  putting  forth  of  those  claims.  We  had  no 
desire  for  a  pecuniary  award,  but  desired  an  expression  by  the 
Tribunal  as  to  the  liability  of  a  neutral  for  claims  of  that  char 
acter.  The  President,  therefore,  further  accepts  the  opinion 
and  advice  of  the  Counsel  as  set  forth  above,  and  authorizes\ 
the  announcement  to  the  Tribunal  that  he  accepts  their  decla-4 
ration  as  determinative  of  their  judgment  upon  the  important 
question  of  public  law  as  to  which  he  had  felt  it  his  duty  to 
seek  the  expression  of  their  opinion ;  and  that,  in  accordance 
with  such  judgment  and  opinion,  from  henceforth  he  regards 
the  claims  set  forth  in  the  Case  presented  on  the  part  of  the 
United  States  for  loss  in  the  transfer  of  the  American  commer 
cial  marine  to  the  British  flag,  the  enhanced  payment  of  insur 
ance,  and  the  prolongation  of  the  war,  and  the  addition  of  a 


ALABAMA  CLAIMS.  73 

large  sum  to  the  cost  of  the  war  and  the  suppression  of  the 
Rebellion,  as  adjudicated  and  disposed  of;  and  that,  consequent 
ly,  they  will  not  be  further  insisted  upon  before  the  Tribunal 
by  the  United  States,  but  are  henceforth  excluded  from  its  con 
sideration  by  the  Tribunal  in  making  its  award." 

This  conclusion  was  announced  to  the  Tribunal  by 
the  Agent  of  the  United  States  on  the  25th  of  June 
in  the  following  words  : 

"The  declaration  made  by  the  Tribunal,  individually  and 
collectively,  respecting  the  claims  presented  by  the  United 
States  for  the  award  of  the  Tribunal  for,  first,  the  losses  in  the 
transfer  of  the  American  commercial  marine  to  the  British  flag ; 
second,  the  enhanced  payment  of  insurance  ;  and,  third,  the  pro 
longation  of  the  war,  and  the  addition  of  a  large  sum  to  the 
cost  of  the  war  and  the  suppression  of  the  Rebellion,  is  accepted 
by  the  President  of  the  United  States  as  determinative  of  their 
judgment  upon  the  important  question  of  public  law  involved." 

On  the  27th,  the  British  Agent  announced  the  ac 
quiescence  of  his  Government  in  this  arrangement, 
withdrew  his  motion  of  adjournment,  and  filed  the 
British  Argument. 

And  in  this  manner  the  controversy,  which  for  so 
many  months  had  engrossed  the  attention  of  the  two 
Governments,  was  finally  disposed  of  as  the  Govern 
ment  of  the  United  States  had  constantly  contended 
it  should  be  [unless  otherwise  settled  by  treaty],— 
that  is,  by  the  declaration  of  the  judgment  or  opinion 
of  the  Arbitrators,  in  such  form  as  to  constitute,  in 
effect,  a  rule  of  law,  morally  binding  on  Great  Britain 
and  the  United  States. 

The  President  of  the  Tribunal,  Count  Sclopis,  then 
proceeded  to  pronounce  an  appropriate  and  well- 
written  discourse,  expressing  satisfaction  at  the  re- 


74:  THE   TREATY  OF  WASHINGTON. 

moval  of  all  obstacles  to  the  free  action  of  the  Tribu 
nal,  and  commenting  on  the  political  relations  of  the 
Treaty  of  Washington,  preparatory  to  the  considera 
tion  of  the  other  questions  submitted  to  the  Arbitra 
tors. 

SEAT   OF  THE  ARBITRATION. 

And  here,  before  proceeding  to  explain  and  to  dis 
cuss  the  subsequent  acts  of  the  Tribunal,  it  seems 
convenient  to  pause,  in  order  to  speak  of  the  scene 
of  action  and  of  the  Tribunal,  to  which  the  eyes  of 
all  nations  were  attracted,  and  especially  those  of  the 
people  of  England  and  of  America, 

It  was  most  fit  and  proper  to  select  Switzerland 
as  the  country,  and  Geneva  as  the  city,  in  which  to 
hold  the  sessions  of  the  Tribunal. 

In  fact,  Switzerland,  at  the  same  time  that  it  is  the 
land  of  hospitality,  inviting  the  frequentation  of  all 
the  world  by  its  picturesque  scenery,  the  beauty  and 
sublimity  of  its  lakes  and  mountains,  is  also  the  land 
of  neutrality  par  excellence.  No  other  country  pos 
sesses  in  the  same  degree  these  qualities  conjoined. 
In  no  other  country  wras  it  possible  to  avoid  all  in 
vidious  local  suspicion,  and  to  be  exempt  from  any 
possible  political  influence  foreign  to  the  objects  of 
the  Arbitration. 

The  selection  was  peculiarly  agreeable  to  the 
United  States,  by  reason  of  the  striking  similarity 
between  our  institutions  and  those  of  Switzerland. 
Both  Governments  cultivate  a  policy  of  international 
neutrality :  the  one,  by  reason  of  its  isolation  and  re- 


ALABAMA  CLAIMS.  75 

moteness  from  the  Old  "World,  and  the  other  because 
of  its  geographical  position  in  the  midst  of  the  great 
military  Powers  of  Europe.  Both  Governments  are 
federal;  and  Switzerland,  not  content  with  those 
modifications  of  her  system  of  government  adopted 
in  the  year  1848,  which  did  so  much  to  assimilate 
her  political  organization  to  that  of  the  United 
States,  now  manifests  the  purpose  to  amend  that 
Constitution  so  as  to  make  it  still  more  like  to  ours. 
In  both  countries  the  force  of  public  life  pervades 
society  like  the  blood  in  the  human  system,  so  that 
every  citizen  is  an  active  member  of  the  Republic. 
Hence  it  is  impossible  to  an  intelligent  American  to 
avoid  entertaining  warm  sympathy  for  the  Swiss 
Confederation. 

Geneva  is  a  cosmopolitan  city,  —  situated  in  the 
very  heart  of  Europe, — distinguished  for  the  intelli 
gence  of  its  inhabitants  and  their  love  of  liberty.  It 
is  city,  in  respect  of  the  commodities  of  life:  it  is 
country,  in  so  far  as  regards  the  locality  and  the  sur 
rounding  natural  objects,  Lake  Leman,  the  Jura,  and 
the  Alps. 

The  Federal  Government,  as  well  as  that  of  the 
Canton  of  Geneva,  appreciated  the  honor  of  being  the 
seat  of  this  great  international  Tribunal,  and  did  not 
fail  to  welcome  most  cordially  the  two  Governments, 
their  Agents  and  their  Counsel,  by  conspicuous  mani 
festations  of  political  as  well  as  of  personal  considera 
tion.  The  Cantonal  Government  at  Geneva  hastened 
to  provide  suitable  accommodations  for  the  Tribunal  in 
the  Hotel  de  Ville  of  that  city;  it  afforded  to  the  mem- 


76  THE  TREATY  OF  WASHINGTON. 

bers  of  the  Tribunal  and  to  the  representatives  of  the 
two  Governments  access  to  numerous  official  exhibi 
tions  and  entertainments;  and,  at  a 'suitable  time,  it 
made  for  us  a  special  festival  at  Geneva,  as  the  Fed 
eral  Government  did  at  Interlaken  and  at  Berne. 

Switzerland,  and  Geneva  especially,  looking  at  the 
several  acts  of  arbitration  provided  by  the  Treaty  of 
Washington  as  constituting  great  steps  in  the  prog 
ress  of  public  peace,  welcomed  us  the  more  heartily 
because  of  the  recent  organization  there  of  a  society, 
whose  objects  are  defined  by  its  title  of  "  Coraite  In 
ternational  de  Secours  aux  Militaires  Blesses."  This 
society  had  acquired  universal  respect  by  its  acts  of 
disinterested  philanthropy  in  the  late  war  between 
Germany  and  France.  Its  symbol  of  the  red  cross 
had  been  the  harbinger  of  relief  to  many  a  suffering 
victim  of  battle.  It  was  organized  under  the  Pres 
idency  of  that  General  Dufour  who,  in  1847,  had  led 
to  victory  the  forces  of  Switzerland  against  the  Seces 
sion  [Sonderbund]  Cantons.  And  men  could  not  fail 
to  note  the  coincidence,  when  they  saw  this  great 
Tribunal  of  Arbitration  organized  under  the  auspices 
of  the  victorious  commander  of  our  own  Union  forces 
[General  Grant],  as  the  International  Commission  for 
the  Succor  of  the  Wounded  had  been  under  the 
auspices  of  the  veteran  General  Dufour.  It  was  im 
pressive  to  see  the  greatest  Generals  of  the  two  coun 
tries  laboring  to  diminish' the  chances  and  lighten  the 
evils  of  war. 

The  Tribunal  of  Arbitration  occupied  the  same  hall 
in  the  Hotel  de  Ville  which  had  just  before  been  oc- 


ALABAMA  CLAIMS.  77 

cupied  by  the  Society  for  the  Succor  of  the  Wounded : 
a  room  of  moderate  dimensions,  but  adequate  to  the 
purpose,  fitted  up  with  elegance  and  good  taste,  not, 
however,  specially  for  the  Commission  or  Tribunal, 
but  for  ordinary  uses  of  the  City  or  Canton,  indicated 
by  its  title  "  Salle  des  Conferences." 

The  Hotel  de  Ville  is  a  structure  in  the  Florentine 
style  of  architecture,  situated  on  the  summit  of  the 
old  Geneva,  and  which  is  occupied  both  by  munic 
ipal  officers  of  the  City  and  by  the  executive  and  leg. 
islative  authorities  of  the  Canton. 

COUNT  FREDERIC  SCLOPIS. 

Here,  then,  in  the  " Salle  des  Conferences"  of  the 
Hotel  de  Ville,  at  Geneva,  the  Tribunal  assembled  to 
listen  to  the  opening  discourse  of  the  President,  Count 
Sclopis,  and  to  take  up  the  business  remaining  for  the 
consideration  of  the  Arbitrators. 

Count  Sclopis,  in  this  discourse,  expressed  belief 
that  the  meeting  of  the  Tribunal  indicated  of  itself 
the  impression  of  new  direction  on  the  public  policy 
of  nations  the  most  advanced  in  civilization,  and  the 
commencement  of  an  epoch  in  which  the  spirit  of 
moderation  and  the  sentiment  of  equity  were  begin 
ning  to  prevail  over  the  tendency  of  the  old  routines 
of  arbitrary  violence  or  culpable  indifference.  He 
signified  regret  that  the  pacific  views  of  the  Congress 
of  Paris  had  not  been  seconded  by  events  in  Europe. 
He  congratulated  the  world  that  the  statesmen  who 
directed  the  destinies  of  Great  Britain  and  the  United 
States,  with  rare  firmness  of  conviction  and  devotion 


78  THE  TREATY  OF  WASHINGTON. 

-  ".  *    s  '•  /.',      ; 

to  the  interests  of  humanity,  resisting  all  temptations 
of  vulgar  ambition,  had  magnanimously  and  coura 
geously  traversed  in  peace  the  difficulties  which  had 
divided  them  both  before  and  since  the  conclusion  of 
the  Treaty.  He  quoted  approvingly  the  opinion  ex 
pressed  by  Mr.  Gladstone,  on  the  one  hand,  and  by 
President  Washington,  on  the  other,  in  commendation 
of  the  policy  of  peace,  of  justice,  and  of  honor  in  the 
conduct  of  nations.  And  he  proclaimed  in  behalf  of 
his  colleagues,  as  well  as  of  himself,  the  purpose  of 
the  Tribunal,  acting  sometimes  with  the  large  percep 
tion  of  statesmen,  sometimes  with  the  scrutinizing  eye 
of  judges,  and  always  with  a  profound  sentiment  of 
equity  and  with  absolute  impartiality,  thus  to  dis 
charge  its  high  duty  of  pacification  as  well  as  of  jus 
tice  to  the  two  Governments. 

The  discourse  was  worthy  of  the  occasion  and  of 
the  man. 

Count  Frederic  Sclopis  of  Salerano,  Minister  of 
State  and  Senator  of  the  new  Kingdom  of  Italy,  has 
attained  the  ripe  age  of  seventy-four  years  in  the  as 
siduous  cultivation  of  letters,  and  in  the  discharge  of 
the  highest  political  and  judicial  functions.  The 
countryman  and  the  friend  of  Count  Cavour,  it  was 
his  fortune  to  co-operate  in  the  task  of  the  unification 
of  Italy  under  the  leadership  of  the  House  of  Savoy. 

This  great  military  House,  with  its  enterprising, 
ambitious,  and  politic  instincts,  second  in  fortune  only 
to  the  Habsburgs  and  the  Zollerns,  rose  in  the  elev 
enth  century,  on  the  ruins  of  the  Burgundians,  to  the 
possession  of  the  passes  of  the  Valaisian,  Cottian,  and 


ALABAMA   CLAIMS. 


0V   THE 

UNI  VERSI' 

l  * 


both 


Graian  Alps,  and  of  the  Gallic  territo 
shores  of  Lake  Lernan,  and  at  length  to  the  possession 
of  extensive  Italian  territories,  denominated  piedmont 
by  relation  to  the  Alps  and  the  Apennines,  the 
nucleus  of  the  present  Kingdom  of  Italy. 

It  needs  to  conceive  and  picture  to  the  mind's  eye 
the  Alpine  cradle  of  this  adventurous  and  martial,  but 
cultivated  race  of  Italianized  Savoisian  princes,  nobles, 
and  people, — the  fertile,  but  ravaged  valleys  of  the 
Rhone,  the  Arve,  the  Albarine,  the  Arc,  and  the  two 
Doras ;  the  castellated  heights  of  L'Ecluse,  Mont- 
melian,  and  La  Brunnetta ;  the  vine-clad  hill-sides  and 
the  lofty  cols  dominated  by  the  giant  peaks  of  Mont 
Blanc  and  Monte  Rosa ;  the  sepulchral  monuments  of 
Haute-Combe  and  of  Brou,  and  the  rich  plains  along 
the  Italian  foot  of  the  Alps, — in  order  to  comprehend 
the  growth  to  greatness  of  sovereigns  such  as  Vittorio 
Emanuele,  supported  by  such  generals  as  Menabrea 
and.Cialdini,  and  statesmen  and  magistrates  such  as 
Azeglio,  Balbo,  Sclopis,  and  especially  Cavour. 

Like  his  compatriot,  the  Marquis  d' Azeglio,  Count 
Sclopis  is  eminent  as  an  author.  Of  his  published 
writings,  some  are  in^French,  such  as  "  Marie  Louise 
Gabrielle  de  Savoie  "  and  "  Cardinal  Moron e."  But 
his  most  important  works  are  in  Italian ;  and  above 
all,  the  learned  "Storia  della  Legislazione  Italiana," 
the  last  edition  of  which,  in  five  volumes,  is  a  most  in 
teresting  and  instructive  exhibition  of  the  successive 
stages  of  the  mediaeval  *-and  modern  legislation  of  all 
the  different  States  of  Italy. 

Such  was  the  eminent  personage  who  presided  over 


80  THE  TREATY  OF  WASHINGTON. 

and  conducted  the  deliberations  of  the  Tribunal,  and 
who  represented  and  spoke  for  it  on  ceremonial  occa 
sions  :  a  "gaan  of  large  stature  and  dignified  presence ; 
of  the  high  breeding  of  rank,  but  without  pretensive- 
ness;  cordial  and  kindly  in  social  intercourse;  the 
impersonation,  as  it  were,  of  the  intellect  and  the  cul 
ture  of  Continental  Europe. 

MR.  STJEMPFLI. 

Sitting  by  the  right  hand  of  Count  Sclopis,  as  next 
to  him  in  precedence,  not  by  reason  of  age, — for  he 
was  the  youngest  member  of  the  Tribunal, — but  as 
representing  the  local  Government,  Switzerland,  was 
Mr.  James  [or,  in  German,  Jacob]  Staempfli:  a  genu 
ine  representative  of  democratic  institutions, — sprung 
from  the  people, — the  son  of  his  own  works, — clear 
headed,  strong-minded,  firm-hearted, — somewhat  posi 
tive, — not  prone  to  talk  except  when  talk  was  of  the 
essence  of  things,  and  then  briefly  and  to  the  point, — 
in  a  word,  a  man  of  the  very  stuff  out  of  which  to 
make  Presidents  of  Federal  Kepublics. 

Mr.  Stsempfli  is  a  German  Swiss  of  the  Canton  of 
Berne,  who  has  risen  from  the  humblest  to  the  highest 
condition  in  his  country  by  mere  force  of  intellect  and 
indomitable  will.  Born  in  1820,  admitted  to  the  Bar 
in  1843,  he  came  forward  at  once  as  an  advocate,  and 
as  a  journalist  of  radical  opinions,  and  speedily  at 
tained  distinction.  In  1846  we  find  him  a  conspicu 
ous  member  of  the  Council*  6f  State,  directing  the 
finances,  and  laboring  to  organize  a  central  military 
force.  In  1847  he  represented  the  Canton  of  Berne 


ALABAMA   CLAIMS.  81 

in  the  Diet,  and  was  active  in  asserting  the  rights  of 
the  Federation  against  the  seceding  States  of  the 
Sonderbund.  He  served  in  that  war  as  Treasurer 
and  Paymaster-General  of  the  Army.  Displaced  for 
a  while,  he  resumed  the  practice  of  his  profession  as 
advocate,  but  soon  returned  to  power,  in  1851,  as  Pres 
ident  of  the  National  Council,  where  he  continued  to 
be  distinguished  as  a  close  reasoner  and  incisive  speak- 
,er,  full  of  intelligence  and  of  resources,  supported  by 
great  energy  of  character.  In  1856,  he  was  elected 
President  of  the  Confederation,  and  again  in  1859, 
and  the  third  time  in  1862 :  these  repeated  but  in 
terrupted  re-elections  illustrating  the  Swiss  Constitu 
tion,  according  to  which  the  President  is  elected  for 
one  year  only,  and  can  not  be  re-elected  for  the  next 
succeeding  year,  but  is  otherwise  re-eligible  without 
limitation.  Events  of  great  importance  to  Switzer 
land  occurred  in  the  years  of  the  administration  of 
Mr.  St^empfli ;  among  others,  the  separation* of  Xeu- 
chatel  from  Prussia,  the  war  in  Italy,  and  the  annexion 
of  Savoy  to  France.  His  theory  of  executive  action 
was  characteristic  of  the  man,  namely, "  When  peril 
is  certain,  it  is  better  to  advance  to  meet  it,  rather 
than  timidly  to  await  its  approach."  In  ftne,  prepa 
ration  and  decision  are  the  distinctive  traits  of  all  the 
official  acts  of  Mr.  Staempfli. 

There  is  one  peculiarity  in  the  political  character 
of  Mr.  Staempfli,  which  belongs  to  him,  indeed,  as  a 
Swiss,  namely,  definiteness  and  affirmativeness  in 
the  matter  of  international  neutrality  and  morality. 
Switzerland  no  longer  permits  capitulations  of  for- 

F 


82  THE  TREATY  OF  WASHINGTON. 

eign  enlistment :  they  are  expressly  forbidden  by  the 
Federal  Constitution.  Her  laws  punish  as  a  crime 
all  violation  by  individuals  of  the  international  rights 
of  foreign  Powers.  Her  neutrality  is  active,  not  pas 
sive, — preventive,  as  well  as  punitive.  She  has  no 
maritime  relations,  it  is  true ;  but,  in  dealing  with  un 
lawful  equipments  or  expeditions  by  land,  she  ob 
serves  rules  of  neutrality  which  are  applicable,  in  the 
ory  and  practice,  equally  to  equipments  or  expedi 
tions  for  naval  warfare.  Our  own  temporary  act  of 
1838,  which  comprehends  vehicles  [on  land]  and  ves 
sels  [on  water]  in  the  same  clause  of  criminality,  af 
fords  complete  answer  to  those  Englishmen  who  have 
superficially  assumed  that  because  Switzerland  is  not 
a  maritime  Power,  she  [or  a  statesman  of  hers]  could 
not  competently  judge  the  case  of  the  Alabama  or 
the  Florida.  Diligence  to  execute  the  law, — vigilance 
to  prevent  its  violation, — is  the  same  in  Switzerland 
as  in  ItHy  or  Brazil,  in  Great  Britain  or  the  United 
States.  And  the  position  of  Switzerland,  which  re 
quires  of  her  the  spontaneous  execution  of  her  neu 
trality  laws,  had  evident  effect  on  the  mind  of  Mr. 
Stsempfli  to  produce  those  conclusions  of  his  against 
Great  Britain,  which,  as  we  shall  see  in  the  sequel, 
were  so  grossly  misapprehended  and  so  angrily  re 
sented  by  Sir  Alexander  Cockburn. 

At  the  time  wrhen  the  Swiss  Government  invited 
Mr.  Stsempfli  to  act  as  Arbitrator  for  Switzerland 
under  the  Treaty  of  Washington,  he  had  full  occupa 
tion  in  public  or  private  affairs  as  a  member  of  the 
National  Council  and  as -President  of  the  Federal 


ALABAMA   CLAIMS.  S3 

(Eidgenossisclie)  Bank  established  at  Berne.  On 
receiving  the  respective  "  Counter-Cases"  of  the  two 
Governments,  which  in  effect  closed  the  proofs  on 
both  sides,  he  took  a  characteristic  step  in  order  to 
be  prepared  for  action  in  June. 

As  you  sail  up  the  Lake  of  Thun  toward  Unter- 
seen  or  Interlaken,  you  note  on  the  left  the  precipi 
tous  wooded  mountain-side  of  Beatenberg.  Here, 
high  up  in  a  rural  hamlet,  hidden  among  the  trees, 
with  the  beautiful  lakes  of  Thun  and  Brieuz  at  his 
feet,  and  the  magnificent  spectacle  of  the  Oberland, 
terminating  at  the  remoter  Berner  Alps, — in  those 
balmy  Alpine  days  when  spring  is  passing  into  sum 
mer,  and  all  earth  is  a  paradise  of  verdure  and  of  ani 
mation, — here  Mr.  Stsenipfli  secluded  himself  from  the 
social  distractions  and  cares  of  business  at  Berne,  and 
dedicated  himself  to  the  mastery  of  the  u  Alabama 
Claims."  In  such  a  blessed  retreat  even  law-books 
might  lose  their  dullness,  and  diplomatic  correspond 
ence,  depositions,  and  legal  pleadings  be  invested  with 
the  charmed  reflection  of  the  matchless  scenery  of 
lakes,  fields,  hamlets,  cities,  mountains,  and  rivers, 
glittering  in  the  sun,  and  resting  in  the  horizon  at 
the  snow-crowned  heights  of  the  Jungfrau. 

And  so  it  seems  to  have  been.  For  good  St.  Bea- 
tus  blessed  the  mountain  labors  of  Mr.  Strernpfli,  and 
he  came  to  Geneva  in  due  time  with  full  abstracts 
of  evidence  and  elaborately  written  opinions  on  the 
main  questions  at  issue  before  the  Tribunal,  to  the  ap 
parent  surprise  of  Sir  Alexander  Cockbum,  who,  con 
fidently  relying  on  the  rupture  of  the  Arbitration,  as 


84:  THE  TKEATY  OF  WASHINGTON. 

lie  himself  avowed,  had  not  yet  begun  to  examine  the 
cause,  and  seemed  to  suppose  that  every  body  else 
ought  to  be  as  neglectfully  ignorant  of  it  as  himself: 
which  sentiment  betrayed  itself  on  various  occasions 
in  the  sittings  of  the  Tribunal. 

VISCOUNT   OF  ITAJUBA. 

On  the  left  of  Count  Sclopis  sat  the  Arbitrator 
named  by  the  Emperor  of  Brazil,  the  Viscount  of 
Itajubd. 

The  people  of  the  United  States  do  not  seem  to  be 
generally  aware  how  much  of  high  cultivation,  es 
pecially  [but  not  exclusively]  in  the  departments  of 
diplomacy  and  jurisprudence,  exists  in  those  countries 
of  America  which  were  colonized  by  Spain  and  Por 
tugal.  Nevertheless,  on  careful  consideration  of  the 
sterling  merits  of  such  historical  writers  as  the  Mexi 
can  Lucas  Alaman, — such  authors  of  international  ju 
risprudence  as  the  Chilean  Bello,  the  Argentine  Calvo, 
or  the  Peruvian  Pando, — such  writers  of  belles-lettres, 
of  travels,  or  of  statistics,  as  the  Colombians  Samper 
and  Perez, — such  poets  as  the  Brazilian  Magalhaens, 
—such  codes  of  municipal  law  as  those  of  the  States 
of  Cundinamarca  and  of  Mexico  or  of  the  Argentine 
Confederation,  and  of  other  Kepublics  of  Spanish 
America,. — we  should  be  compelled  to  admit  that  lit 
erature  and  science  are  not  confined  to  our  part  of 
the  "New  World. 

And,  among  all  these  new  Powers  of  America,  there 
is  not  one  more  deserving  of  respect, — Empire  and 
not  Republic  though  it  be,: — than  Brazil,,  in  view  of 


ALABAMA  CLAIMS.  85 

the  magnitude  of  its  territory,  the  greatness  of  its  re- 

O  «/  '  ^> 

sources,  its  military  strength  and  successes,  its  enlight 
ened  and  reforming  chief  ruler,  the  substantial  liber 
ality  of  its  political  institutions,  and  the  unbroken 
domestic  tranquillity  of  its  independent  life,  so  strik 
ingly  in  contrast  with  the  revolutionary  agitations  of 
most  of  the  Spanish-American  Republics. 

Marcos  Antonio  d'Araujo  belongs  to  that  numer 
ous  body  of  jurists  and  statesmen,  the  natural  growth 
of  parliamentary  institutions  based  on  popular  elec 
tion,  who  do  honor  at  the  present  time  to  Brazil.  He 
filled  in  early  life  the  chair  of  Professor  of  Jurispru 
dence  in  the  University  of  Pernambuco.  His  first 
diplomatic  appointment  was  that  of  Consul-General 
of  Brazil  in  the  Hanse  Towns,  with  residence  at  Ham 
burg.  After  that  he  held  successively  the  offices  of 
Minister  or  Envoy  at  Hanover,  at  Copenhagen,  at 
Berlin,  and  finally  at  Paris.  At  the  time  of  his  ap 
pointment  as  Arbitrator  he  was  Envoy  Extraordi 
nary  and  Minister  Plenipotentiary  of  Brazil  in  France, 
by  the  title  of  Baron  d'ltajuba,  and  he  was  made  a 
Viscount  during  the  progress  of  the  Arbitration. . 

With  exception,  therefore,  of  the  judicial  studies 
and  occupations  of  his  youth,  the  Viscount  of  Itajuba 
is  a  diplomatist,  having  passed  nearly  forty  years  of 
his  life  in  the  discharge  of  diplomatic  functions  in 
different  countries  of  Europe.     He  possesses  all  the  r 
qualities  of  his  career  and  station,  namely,  courteous  \ 
and  attractive  manners,  intelligence  disciplined  by  long 
experience  of  men  and  affairs,  instinctive  appreciation  \ 
of  principles  and  facts,  and  the  ready  expression  of 


86  THE  TREATY  OF  WASHINGTON. 

thought  in  apt  language,  but  without  the  tendency  to 
run  into  the  path  of  debate  or  exposition,  which  ap 
peared  in  the  acts  of  some  of  his  colleagues  of  the 
Tribunal  of  Arbitration. 

In  comparing  Mr.  Stsempfli,  with  his  deep-brown 
complexion,  his  piercing  dark  eyes,  his  jet  black  hair, 
his  quick  but  suppressed  manner,  and  the  Viscount 
of  Itajuba",  writh  his  fair  complexion  and  his  air  of 
gentleness  and  affability,  one,  having  no  previous 
knowledge  of  their  respective  origins,  would  certainly 
attribute  that  of  the  former  to  tropical  and  passion 
ate  America,  and  that  of  the  latter  to  temperate  and 
calm-blooded  Europe. 

SIR  ALEXANDER   COCKBURN. 

On  the  extremes  of  the  Board,  Mr.  Adams  to  the 
right  and  Sir  Alexander  Cockburn  to  the  left,  sat 
the  American  and  British  members  of  the  Tribunal. 

Sir  Alexander  Cockburn  represents  a  family  of 
some  distinction,  the  Cockburns  of  Langton.  His 
father  was  British  Minister  in  Colombia,  and  one  of 
his  uncles  was  that  Admiral  Sir  George  Cockbum, 
whose  service  in  American  waters  during  our  last 
wrar  with  Great  Britain  has  left  some  unpleasant 
traces  or  memories  in  the  United  States.  His  mother 
seems  to  have  been  a  French  lady,  being  described 
by  Burke  as  "  Yolande,  dau.  of  Viscomte  de  Vignier 
of  St.  Domingo."  He  was  born  in  1802,  called  to 
the  bar  in  1829,  became  distinguished  as  a  barrister, 
entered  Parliament,  and,  after  passing  through  the 
routine  offices  of  Solicitor  and  Attorney  General,  was 


ALABAMA  CLAIMS.  87 

made  Chief  Justice  of  the  Court  of  Common  Pleas 
in  1856,  and  of  the  Queen's  Bench  in  1859,  which 
place  he  still  fills. 

He  presided  for  sixteen  years  in  the  common-law 
courts  of  England  without  being  raised  to  the  peer 
age.  It  is  unnecessary  to  speculate  on  the  reasons 
for  this  unusual,  if  not  unprecedented  fact. 

His  political  career  dates  from  his  zealous  defense 
of  Lord  Palmerston  in  the  affair  of  the  notorious 
David  Pacifico.  This  person  was  aa  adventurer  of 
doubtful  nationality  and  of  bad  character,  in  whose 
behalf  the  navy  of  Great  Britain,  under  Lord  Paliner- 
ston's  direction,  seized  the  Piraeus,  captured  Greek 
merchant- vessels,  and  threatened  Athens.  The  ground 
of  claim  was  alleged  destruction  of  property  by  a  mob. 
Pacifico  claimed,  according  to  the  official  statement  of 
the  case  by  the  British  Government,  '£4916  on  ac 
count  of  furniture  and  other  personal  effects,  which 
he  originally  stated  at  only  5000  francs,  and  £26,618 
16s.  8d.  on  account  of  papers.  It  is  very  doubtful 
whether  the  claim  was  a  proper  subject  of  interna 
tional  reclamation.  But,  after  a  three  months'  block 
ade,  Greece  submitted  to  pay  £5000,  of  which  £4720 
was  either  falsehood  or  consequential  damages ;  and 
afterward,  on  examination  of  the  case  in  Lisbon,  a 
commission  awarded  the  petty  sum  of  £150  in  full 
satisfaction  of  the  pretended  loss  of  £26,618,  induced 
perhaps  by  political  reasons  rather  than  by  conviction 
of  any  rights  of  Pacifico. 

The  conduct  of  Lord  Palmerston  and  the  British 
Government  in  this  affair  nearly  involved  Great  Brit- 


88  THE  TREATY  OF  WASHINGTON. 

ain  in  a  war  with  France  and  Russia.  The  French 
Embassador  retired  from  London  to  Paris  for  the 
purpose  of  personal  communication  on  the  subject 
Avith  his  Government.  Count  Nesselrode  on  behalf 
of  Russia  remonstrated  in  a  dispatch,  which  the  Lon 
don  Times  characterized  as  reproachful,  irrefutable, 
and  just,  and  as  profoundly  affecting  the  peace  of  Eu 
rope  and  the  dignity  of  Great  Britain.  The  united 
voice  of  Europe  and  America  has  condemned  the  con 
duct  of  Great  Britain  in  this  affair.  The  House  of 
Lords  closed  an  historic  debate  by  a  vote  of  censure 
of  the  Government.  In  the  Commons,  the  last  words 
of  Sir  Robert  Peel  were  raised  in  protest  against  this 
outrage  on  the  rights  of  other  nations ;  the  morn 
ing  dawned  on  a  protracted  session"  of  the  House 
before  he  recorded  his  vote  of  condemnation ;  in  the 
afternoon  of  the  same  day  he  met  with  the  accident 
which  closed  his  honorable  life.  Mr.  Gladstone  in  the 
same  debate  said  that  the  claim  wras  "on  the  very  face 
of  it  an  outrageous  fraud  and  falsehood;'7  that  "it 
was  mere  falsehood  and  imposture,"  and  that  "  a  great 
er  iniquity  had  rarely  been  transacted  under  the  face 
of  the  sun." 

Sir  Alexander  Cockburn  was  then  without  parlia 
mentary  distinction  or  political  advancement.  With 
the  devotion  of  a  Dalgetty,  he  placed  his  lance  at 
the  service  of  a  chief,  regardless  of  the  merits  of  the 
cause.  He  was  soon  rewarded  for  his  services  by 
appointment  to  the  office  of  Solicitor-General,  from 
which  he  was  promoted  step  by  step,  with  unexam 
pled  celerity,  to  his  present  position. 


ALABAMA   CLAIMS.  89 

Since  he  became  the  head  of  the  Queen's  Bench  he 
has  occasionally  appeared  in  the  field  of  letters  on 
questions  connected  with  municipal  or  public  law,  but 
not  in  a  way  to  invite  respect  at  home,  or  attention 
beyond  the  limits  of  Great  Britain. 

A  few  years  ago  he  published  a  monogram  on  the 
subject  of  nationality,  in  which  he  reproduced  in  an 
abridged  form  [but  quite  incorrectly,  as  the  remarks 
of  a  most  competent  judge,  Mr.  Beach  Lawrence,  on 
droit  cFaubaine,  tend  to  show]  the  matter  contained 
in  the  report  of  a  commission  appointed  by  the  Gov 
ernment  to  inquire  into  and  report  upon  the  laws  of 
naturalization  and  allegiance  in  England. 

Again,  when  it  was  proposed  to  arraign  Nelson  and 
Brand  as  criminals  in  England  for  acts  committed  in 
Jamaica  under  proclamation  of  martial  law,  Sir  Alex 
ander  Cockburu  delivered  a  voluminous  charge  to  the 
grand  jury,  which  he  afterward  published  with  addi 
tions  and  notes,  notwithstanding  the  partiality  and  the 
urgency  of  which,  the  grand  jury  refused  to  find  a  bill ; 
and  it  must  be  confessed  that,  as  a  charge,  it  was  pas 
sionate,  vague,  declamatory,  and  confused ;  and  as  an 
exposition  of  law,  it  is  valueless  when  compared  with 
the  treatises  of  Mr.  Finlason,  in  England,  and  of  Mr. 
Whiting,  in  America,  on  the  same  subject. 

This  charge,  and  some  proceedings  by  which  it 
was  followed,  provoked  much  criticism.  Mr.  Ga- 
thorne  Hardy,  for  instance,  called  attention  to  the 
fact  that  the  Chief  Justice  "vacillated,"  that  he 
"went  from  one  side  to  another,"  so  as  to  render  it 
doubtful  what  his  opinions  really  were;  and  Mr. 


90  THE  TREATY  OF  WASHINGTON. 

Hardy,  as  well  as  Mr.  Mill,  who  spoke  on  the  other 
side  of  the  general  question,  said  that  the  charge  was 
"  not  law,"  and  was  "  without  legal  authority."  Mr. 
Finlason,  a  most  competent  authority,  said  that,  "  al 
though,  the  charge  dealt  so  largely  in  denunciation," 
it  was  "  utterly  indeterminate  and  indecisive ;"  that 
"  it  avowed  a  state  of  entire  doubt ;"  that,  though 
"  there  was  much  denunciation  of  law  laid  down  [by 
others],  there  was  no  positive  declaration  of  law  laid 
down  by  the  Chief  Justice."  The  same  writer  also 
points  out  grave  mistakes  of  history  as  well  as  errors 
of  law  in  this  charge.  Thus,  the  Chief  Justice  as 
sumes,  as  a  cardinal  thought,  that  martial  law  and 
military  law  are  one  and  the  same  thing:  a  mistake, 
which  implies  extraordinary  confusion  of  mind',  for- 
getfulness  of  his  own  official  opinions  in  the  inci 
dents  of  the  rebellion  in  Ceylon,  and  ignorance  of 
the  most  commonplace  events  of  English  history,  for 
instance,  as  detailed  in  Hallain  and  Macaulay, 

I  allude  to  these  criticisms  for  the  reason  that,  as 
will  appear  in  the  sequel,  the  same  singular  intellect 
ual  traits  and  moral  characteristics  of  the  Chief  Jus- 
tice,  which  became  conspicuous  at  Geneva,  had  shown 
themselves  on  the  Queen's  Bench,  and  had  attracted 
the  notice  of  his  fellow-countrymen. 

I  refer  to  this  charge  for  another  cause.  It  is  diffi 
cult  for  many  reasons  to  measure  the  exact  personal 
value  of  ordinary  legal  opinions  delivered,  in  the 
course  of  adjudication,  by  any  judge  of  the  Queen's 
Bench.  All  such  difficulties  cease  when  he  goes  out 
of  his  way  to  deliver  a  demonstrative  charge  to  a 


ALABAMA  CLAIMS.  91 

grand  jury  on  one  of  the  semi-political  questions  of 
the  day,  and  especially  when  such  charge  is  carefully 
revised  for  the  Press,  with  additions  and  annotations 
by  himself.  Then  we  have  the  most  satisfactory 
means  of  estimating  the  mental  character  of  that 
judge.  And  such  is  the  case  here,  to  the  effect  of 
lowering  greatly  our  estimation  of  the  Chief  Justice. 

A  later  incident  in  his  judicial  career  also  throws 
some  light  on  his  character,  and  deserves  notice  in 
this  connection.  .  •>•, 

When  it  was  proposed  to  commence  proceedings 
against  Governor  Eyre,  growing  out  of  what  had 
been  done  in  Jamaica  under  the  same  proclamation, 
Mr.  Justice  Blackburn  delivered  a  charge  to  the 
grand  jury,  in  the  course  of  which  he  said:  "As  to 
the  judges  of  my  own  court,  the  Lord  Chief  Justice, 
my  brother  Mellor,  my  brother  Lush,  and  my  broth 
er  Hannen, .  .  .  yesterday  I  stated  to  them  the  effect 
of  what  I  am  now  stating  to  you,  and  they  all  ap 
proved  of  it,  and  authorized  me  to  say, — of  course,  not 
relieving  me  from  my  responsibility,  or  absolutely 
binding  them,  for  of  course  they  have  not  considered 
it  so  thoroughly  and  judicially  as  I  have  been 
obliged  to  do, — still  they  authorize  me  to  say  they 
agree  in  my  view  of  the  law,  and  thought  it  right." 
A  week  later,  when  the  case  had*  been  entirely  dis 
posed  of,  the  Chief  Justice,  while  sitting  on  the 
Bench,  denied,  with  unseemly  warmth  of  language 
and  manner,  that  he  had  assented  to  the  law  as  laid 
down  by  Mr.  Justice  Blackburn ;  but  explained  the 
alleged  difference  of  opinion  in  such  •  obscure  Ian- 


92  THE  TREATY  OF  WASHINGTON. 

guage  as  to  render  it  scarcely  intelligible.  Mr.  Jus 
tice  Blackburn  replied,  reiterating  in  temperate  lan 
guage  his  statement  that  the  Chief  Justice  had  ex 
pressly  assented  to  the  legal  doctrine  of  the  charge, 
and  his  colleagues,  Justices  Mellor,  Lush,  and  Han- 
nen,  gave  no  support  to  the  denial  made  by  the  Chief 
Justice. 

The  qualities  of  character  exhibited  in  this  inci 
dent  were  the  occasion  at  the  time  of  unfavorable 
commentary  on  the  part  of  the  British  Press  and 
public. 

Sir  Alexander  Cockburn  had  seemed,  on  superfi 
cial  view,  a  fit  person  to  take  part  in  the  important 
duties  committed  to  the  Tribunal  of  Arbitration.  He 
carried  thither  the  prestige  of  judicial  rank,  as  the 
head  of  one  of  the  most  venerable  courts  of  Europe. 
And  he  was  thorough  master  of  the  language  in 
which  the  discussions  of  the  Tribunal  were  con 
ducted.  4 

But,  unfortunately,  it  would  seem  that  neither  the 
original  constitution  of  his  mind,  nor  the  studies,  pur 
suits,  or  habits  of  his  life,  had  fitted  him  for  calm,  im 
partial,  judicial  examination  of  great  questions  of 
public  law.  The  same  /traits  of  confused  thought, 
equivocation  in  matters  of  law,  tendency  to  declama 
tory  denunciation  of  adversary  opinions,  which  pro-' 
voked  and  justified  the  criticisms  of  Mr.  Finlason, 
Mr.  Gathorne  Hardy,  and  others,  and  which  prompt 
ed  conflict  with  Mr.  Justice  Blackburn,  reappeared 
in  more  vivid  colors  at  Geneva. 

Of  the  offensive  singularities  of  his  deportment  as 


ALABAMA  CLAIMS.  93 

Arbitrator,  we  shall  have  but  too  much  necessity  to 
speak  in  describing  the  acts  of  the  Tribunal. 

MR.  CHARLES  FRANCIS  ADAMS. 

In  the  American  Arbitrator,  Mr.  Charles  Francis 
Adams,  the  Tribunal  had  a  member  worthy  of  the 
companionship  of  Count  Frederic  Sclopis. 

In  the  United  States,  persons  have  been  found  so 
foolish  as  to  reproach  Mr.  Adams  because  of  the  his 
torical  eminence  of  his  father  and  of  his  grandfather, 
and  even  because  of  the  intelligence  and  cultivation 
of  his  sons :  as  if  it  were  a  crime  in  a  Republic  for  a 
father  to  have  a  good  son,  or  a  son  a  good  father,  or 
to  live  in  the  holy  atmosphere  of  a  succession  of  wise 
and  virtuous  mothers. 

Besides,  if  it  be  meritorious  to  rise  to  distinction 
from  lowliness  and  poverty,  it  is  not  less  so  to  resist 
and  overcome  the  obstacles  to  personal  distinction 
created  by  parental  station  or  wealth.  In  this,  which 
is  the  only  correct  view  of  the  subject,  all  men  are 
self-made.  The  attributes  of  Mr.  Charles  Francis 
Adams  are  his  own  :  distinguished  parliamentary  ca 
reer  in  the  Legislature  of  the  State  of  Massachusetts 
and  in  the  Congress  of  the  United  States, — literary 
merits  of  a  high  order  as  displayed  in  his  "  Life  and 
Writings  of  John  Adams," — able  diplomatic  repre 
sentation  of  his  Government  in  Great  Britain  during 
the  whole  dark  period  of  our  Civil  War.  He  pos 
sessed  qualities,  acquirements,  and  experience,  general 
and  special,  which  seemed  to  invite  his  appointment 
as  American  Arbitrator;  and  in  the  discharge  of  the 


94:  THE  TREATY  OF  WASHINGTON. 

duties  of  the  office  he  did  honor  to  the  Tribunal  and 
to  the  United  States. 

The  deportment  of  Mr.  Adams  as  a  member  of  the 
Tribunal  was  unexceptionably  dignified,  manly,  cour 
teous,  even  when  compelled  on  more  than  one  occa 
sion  to  notice  rude  acts  or  words  of  Sir  Alexander 
Cockburn.  While  the  conduct  of  the  latter  was  too 
frequently  on  the  comparatively  low  plane  of  the  nisi 
prins  attorney  of  a  party  before  a  court,  the  conduct 
of  the  former  was  uniformly  on  the  higher  one  of  a 
member  of  the  court  and  a  judge.  Hence,  in  the 
same  degree  that  the  personal  influence  of  Mr.  Adams, 
by  reason  of  his  recognized  impartiality- and  integrity, 
wras  beneficial  to  the  United  States,  on  the  other  hand, 
the  influence  of  Sir  Alexander  Cockburn,  by  reason 
of  his  petulant  irritability  and  unjudicial  partisanship 
of  action,  was  unfavorable  to  Great  Britain. 

Such,  then,  were  the  Arbitrators  representing  the 
five  Governments. 

SECRETARY  OF  THE  TRIBUNAL. 

Their  Secretary,  Mr.  Alexandre  Favrot,  was  a  gen 
tlemanly  person  of  literary  attainments  and  profes 
sion,  actually  residing  in  Berne,  but  born  in  the 
French-speaking  Canton  of  Neuchatel,  who  had  be 
come  perfectly  acquainted  with  the  English  language 
by  a  sojourn  of  several  years  in  England. 

AGENTS  AND  COUNSEL. 

The  Agents  of  the  two  Governments,  Lord  Tenter- 
den  and  Mr.  Bancroft  Davis,  were  peculiarly  qualified 


ALABAMA  CLAIMS.  95 

for  the  places  they  filled,  both  of  them  having  served 
in  similar  capacities  in  the  foreign  Department  of 
their  respective  Governments,  and  both  having  assist 
ed  in  the  negotiation  of  the  Treaty  of  Washington. 
Their  friendly  personal  relations  were  advantageous 
in  facilitating  the  movement  of  business  before  the 
Arbitration. 

Mr.  Bancroft  Davis  deserves  particular  mention. 
Englishmen  may  criticise  the  American  "  Case,"  the 
labor  of  preparing  which  devolved  chiefly  on  him; 
but  its  indisputable  merit  should  draw  to  him  the 
applause  of  every  American.  His  literary  accom 
plishments,  his  previous  diplomatic  experience,  his 
knowledge  of  men  and  things  in  Europe,  and -his  de 
voted  and  untiring  attention  to  the  public  interests, 
were  singularly  useful  to  the  United  States. 

Of  the  persons  or  qualities  of  the  Counsel  of  the 
United  States,  Mr.  Morrison  R.  Waite,  Mr.  William 
M.  Evarts,  and  the  writer  of  this  exposition,  it  would 
be  unbecoming,  as  it  is  quite  superfluous,  here  to 
speak. 

In  this  relation,  however,  it  is  proper  to  call  atten 
tion  to  two  facts  or  incidents  of  national  interest  or 
concernment. 

In  the  first  place,  to  the  honor  of  the  President  of 
the  United  States  be  it  said,  in  the  selection  of  Coun 
sel  by  him,  as  for  instance  in  the  invitation  to  Mr.  B. 
R.  Curtis,  considerations  <&party  were  not  allowed  to 
exert  controlling  authority. 

Secondly,  the  Counsel  themselves  emulated  the 
catholic  spirit  of  the  President  in  subordinating  all 


f    9t5  •'  THE   TREATY  OF  WASHINGTON. 

personal  considerations  to  the  single  object  of  win 
ning  a  great  cause,  the  greatest  ever  committed  to  the 
charge  of  members  of  the  Bar,,  and  pending  in  the 
highest  court  ever  organized,  namely,  the  suit  of 
the  United  States  against  Great  Britain  before  the 
Tribunal  of  Arbitration.  Although  diverse  in  their 
habits  of  mind,  and  in  their  lines  of  experience  and 
action,  they  acted  as  a  unit  in  the  determination  of 
advice  to  be  given  from  time  to  time  to  the  Govern 
ment  or  its  Agent ; — in  the  preparation  of  the  printed 
Argument  required  by  the  Treaty,  a  document  of  five 
hundred  pages,  to  be  signed  by  them  jointly; — and  in 
the  subsequent  preparation  of  a  number  of  joint  or 
separate  Arguments  in  compliance  with  the  require 
ments  of  the  Arbitrators.  We  may  appeal  to  those 
Arguments  as  the  tangible  proof,  at  any  rate,  of  our 
concurrent  and  united  dedication,  during  nine  months 
of  continuous  and  solicitous  thought  or  labor,  to  the 
discharge  of  our  duty  to  our  Government  and  our 
country,  as  Counsel  under  the  Treaty  of  Washington. 

Sir  Roundell  Palmer  alone  appeared  before  the 
Tribunal  as  eo  nomine  Counsel  of  Great  Britain  ;  but 
Mr.  Mountague  Bernard,  elevated  to  the  office  of  a 
law-member  of  the  Queen's  Council,  sat  by  his  side  at 
the  Counsels'  table,  and  also  Mr.  Cohen.  The  hand 
of  the  latter  was  apparent  in  the  estimates  and  ex 
hibits  presented  to  the  Tribunal  to  guide  them  in  the 
determination  of  the  damages  to  be  awarded  to  the 
United  States. 

The  recent  promotion  of  Sir  Roundell  Palmer  to 
the  pre-eminent  post  of  Lord  Chancellor,  by  .the  title 


ALABAMA  CLAIMS. 

of  Lord  Selborne,  is  the  appropriate ^r- ~*  ^  »,  . 

a  professional  and  parliamentary  career  orctistin- '" 
guished  ability  and  of  unstained  honor.  In  conduct 
ing  the  deliberations  of  the  House  of  Lords ;  in  pre 
siding  over  the  High  Court  of  Chancery ;  in  partic 
ipating  in  the  affairs  of  the  Cabinet ;  in  guiding  the 
conscience  of  the  Queen  through  the  embarrassments 
which  now  beset  the  English  Church,  we  may  be  sure 
that  Lord  Selborne  will  join  to  the  high  authority  of 
a  skillful  debater  and  a  learned  jurist  the  still  higher 
authority  of  a  sincerely  conscientious  statesman,  so  as 
to  add  incontestable  force  to  Mr.  Gladstone's  Ministry. 
And  all  that  authority,  we  may  confidently  assume, 
will  be  used  in  the  promotion  or  maintenance  of 
amicable  relations  between  Great  Britain  and  the 
United  States. 

This  account  of  the  personnel  of  the  Arbitration 
would  be  imperfect  without  mention  of  the  younger 
but  estimable  persons  who  constituted  the  staff  of 
the  formal  representatives  of  the  two  Governments, 
namely :  on  the  part  of  the  United  States,  Mr.  C.  C. 
Beaman,  as  solicitor,  and  Messrs.  Brooks  Adams,  John 
Davis,  P.W.Hackett,W.F.Pedrick,  and  Edward  T. 
Waite,  as  secretaries ;  and  on  the  part  of  Great  Brit 
ain,  in  the  latter  capacity  or  as  translators,  Messrs. 
Sanderson,  Markheim,Villiers,  Langley,  and  Hamilton. 
If  the  labors  of  these  gentlemen  were  less  conspicuous 
than  those  of  the  Agents  and  Counsel,  they  were 
scarcely  less  indispensable;  and  they  all  deserve  a 
place  in  the  history  of  the  Arbitration. 

A  single  observation  will  close  up  these  personal 

G 


98  THE   TKEATY   OF   WASHINGTON. 

sketches,  and  bring  us  to  the  consideration  of  the  ul 
terior  proceedings  of  the  Tribunal. 

Occasionally,  but  not  frequently,  at  the  present  clay, 
we  hear  in  the  United  States  ungracious  suggestions 
touching  the  personal  deportment  of  Englishmen.  No 
such  observations,  it  is  certain,  are  justified  by  any  ex 
perience  of  the  city  of  Washington.  The  eminent 
persons,  who,  in  the  present  generation,  have  repre 
sented  the  British  Government  here,  whether  in  per 
manent  or  special  missions,  such  as  Sir  Richard  Pack- 
enham,  Lord  Napier,  Lord  Lyons,  Sir  Frederick  Bruce, 
and  Sir  Edward  Thornton,  of  the  former  class,  and 
Lord  Ashburton,  the  Earl  of  Elgin,  Earl  De  Grey, 
Sir  Stafford  Northcote,  Mr.  Mountague  Bernard,  Sir 
John  A.  Macdonald,  and  Lord  Tenterden,  of  the  latter 
class,  with  the  younger  persons  of  their  respective 
suites,  and  so  many  others  who  have  visited  this  city, 
were  unmistakably  and  with  good  cause  popular  with 
the  Americans.  Indeed,  it  is  rather  in  Continental 
Europe,  and  especially  in  France,  and  by  no  means 
in  the  United  States,  that  overbearingness  or  un- 
courteous  deportment  toward  others  is  regarded  as  a 
trait  of  Englishmen. 

And  it  is  agreeable  to  remember  that,  of  the  ten 
Englishmen  with  w7honvwe  of  the  United  States  came 
in  daily  contact  at  Geneva,  and  sometimes  in  circum 
stances  of  contentious  attitude  of  a  nature  to  produce 
coolness  at  least,  all  but  one  were  uniformly  and  un- 
exceptionably  courteous  in  act  and  manner, — and  that 
one  Chief  Justice  of  the  Queen's  Bench. 

Is  a  holder  of  the  office  of  Chief  Justice  emanci- 


ALABAMA   CLAIMS.  99 

pated  from  all  social  bonds  I  It  is  not  so  with  Chief 
Justices  in  America ;  nor  was  it  so  in  former  days  in 
Great  Britain,  according  to  my  recollection  of  the 
great  judges,  the  Eldous,  the  Tenterdens,  and  the 
Stowells,  who  then  presided  over  the  administration 
of  the  common  law,  and  of  the  equity  and  admiralty 
jurisprudence  of  England.  Has  the  human  race  there 
degenerated  ?  I  think  not :  no  possible  judicial  ten 
ure  of  office  could  transform  or  deform  a  Eoundell 
Palmer  into  an  Alexander  Cockburn. 

EFFORTS  OF  THE  BRITISH  GOVERNMENT  TO  OBTAIN 
REARGUMENT. 

The  Tribunal  and  the  persons  attending  it  are  now 
before  us,  and  we  resume  its  proceedings  at  the  point 
where  we  left  them,  namely,  the  session  of  the  27th 
of  June,  at  the  close  of  the  address  of  Count  Sclopis. 
•  The  "Argument,"  filed  in  behalf  of  the  United 
States  on  the  15th  of  June,  was  prepared  and  deliv 
ered  in  strict  conformity  with  the  stipulations  of  the 
Treaty.  It  was,  in  effect,  the  closing  argument  on  the 
whole  case,  consisting  of  an  abridged  view  of  the  facts 
on  both  sides  as  presented  in  their  "  Cases "  and 
"  Counter-Cases,"  with  appropriate  discussion  of  the 
questions  of  law  which  the  claims  of  the  United  States 
involved.  We  followed  the  ordinary  routine  of  judi 
cial  controversy,  and  the  course  of  common-sense  and 
of  necessity,  in  giving  a  complete  resume  of  our  Case 
in  the  final  "Argument,"  as  contemplated  and  pre 
scribed  by  the  Treaty. 

The  "Case?  and  " Counter-Case "  of  each  side  had 


100  THE  TREATY  OF  WASHINGTON. 

sufficiently  indicated  the  scope  of  inquiry  or  debate, 
and  defined  its  limits.  Within  those  limits  all  perti 
nent  law,  history,  and  reason  lay  at  the  command  of 
the  Counsel  of  the  United  States,  as  of  those  of  Great 
Britain.  If  we,  the  Counsel  'of  the  United  States,  had 
neglected  at  the  proper  time  to  avail  ourselves  of  the 
great  stores  of  knowledge  and  of  reason  accessible  to 
us,  we  could  not  expect  to  supply  the  deficiencies  of 
our  "Argument "  by  filing  a  new  one  as  the  means  of 
response  to,  and  commentary  on,  the  British  "Argu 
ment."  Such  procedure  was  not  authorized, — it  was 
plainly  forbidden, — by  the  Treaty. 

It  avails  nothing  to  say  that  the  course  prescribed 
by  the  Treaty  is  unusual:  such  was  the  wrill  of  the 
two  Governments.  Doubtless  they  had  good  reasons, 
and  among  them,  perhaps,  was  the  very  purpose  of 
not  having  final  "Arguments," — that  is,  the  third  argu 
ment  in  effect  on  both  sides, — consist  of  a  mere  debate 
of  reply  and  rejoinder  betwixt  Counsel. 

Great  Britain  had  no  cause  or  excuse  for  misappre 
hension  in  this  respect,  although  both  Government 
and  Counsel  had,  it  is  true,  fallen  into  the  careless 
way  of  speaking  of  the  "  Summary  "  to  be  filed  on  the 
15th  of  June.  Nay,  the  paper  filed  by  Great  Britain 
is  expressly  entitled  "Argument  or  Summary"  If 
argument  and  summary  are  synonymous  terms,  then 
it  is  tautology  and  bad  taste  to  employ  them  both  to 
designate  the  same  document.  If  they  mean  different 
things,  then  it  is  misleading  to  employ  the  term  sum 
mary  at  all ;  for  summary  is  not  the  language  nor  the 
sense  of  the  Treaty.  The  Treaty  requires  each  Agent 


ALABAMA  CLAIMS.  101 

to -deliver  "a  written  or  printed  argument  showing 
the  points  and  referring  to  the  evidence  upon  which 
his  Government  relies."  Do  these  words  imply  a 
weak  or  imperfect  argument  ?  Do  they  define  the 
number  of  pages  to  be  occupied  ? '  Do  they  require 
either  of  the  parties  to  leave  out  his  strong  points  ? 
Of  course  not.  And  if  the  Treaty  said  "  summary," 
—which  it  does  not, — who  shall  say  what  is  a  fit  sum 
mary  of  some  twenty  volumes  of  evidence  and  of  legal 
discussions,  such  as  the  two  "  Cases  "  and  "  Counter- 
Cases"  comprehend?  The  United  States  had  the 
right  to  judge  for  themselves  what  exhibition  of 
"points"  and  what  "evidence"  to  submit  to  the  Ar 
bitrators. 

The  British  Government  must  have  been  dissatis 
fied  with  its  own  argument.  That  is  clear,  and  is  the 
only  sufficient  explanation  of  the  earnest  and  persist 
ent  efforts  of  Sir  Roimdell  Palmer  to  obtain  permis 
sion  to  reargue  the  cause.  There  was  no  misappre 
hension  on  the  part  of  the  British  Government  as  to 
the  more  or  less  fullness  of  argumentation  admissible 
in  the  so-called  "Argument;"  for  there  is  notable 
similitude  in  this  respect  on  both  sides  in  the  intro 
ductory  language  of  the  final  "Arguments"  of  the 
two  Governments.  We  believed  at  the  time,  and  all 
the  subsequent  occurrences  tended  to  prove,  that  as 
the  British  Government  had  underestimated  the  force 
of  our  cause  until  the  "  Case  "  came  into  their  hands, 
so  they  did  not  appreciate  the  amplitude  of  our  law 
and  our  evidence  until  they  read  our  "Argument." 
And  strange,  almost  incredible,  though  it  be,  the 


102  THE   TREATY   OF   WASHINGTON. 

British  Government  would  seem  to  have  supposed 
that  the  United  States  were  to  discuss  and  confute 
the  British  "  Counter-Case"  in  the  American  " Counter- 
Case  ;"  that  is,  to  make  reply  to  an  elaborate  argu 
ment  on  the  law  and  the  facts  [for  such  is  the  British 
"Counter-Case"]  without  seeing  it  or  possessing  any 
knowledge  of  its  contents.  Manifestly,  no  complete 
and  systematic  final  "Argument"  on  the  part  of  the 
United  States  was  possible  without  previous  thought 
ful  knowledge  of  the  British  "  Counter-Case."  And 
yet  Sir  Roundell  Palmer,  in  expressing  desire  to  an 
swer  our  "Argument,"  reasoned  expressly  on  the  im 
plication  that  it  ought  to  have  been  "a  mere  comple 
ment  of  previous  documents"  No  such  idea  certainly 
is  conveyed  by  the  Treaty;  and  the  implication  is 
contrary  to  reason  and  the  very  nature  of  things. 

Sir  Roundell  Palmer  entered  on  the  question  the 
moment  it  became  reasonably  certain  that  the  Arbi 
tration  would  proceed.  On  the  29th  of  June  he  pro 
posed  to  us,  informally,  to  arrange  for  reargument  of 
the  cause,  he  to  have  until  the  end  of  the  first  week 
of  August  to  prepare  his  Argument,  and  wre  to  the 
end  of  August  to  prepare  a  reply.  The  effect  of  this 
wrould  be  a  suspension  of  the  sittings  for  more  than 
ten  weeks,  and  a  prolongation  to  that  extent  [and 
perhaps  much  more]  of  the  absence  of  the  American 
Arbitrator,  Agent,  and  Counsel  from  their  country. 
In  other  respects  the  proposition  involved  much  in 
equality;  for  it  would  have  given  to  the  British 
Counsel  nearly  six  iveeks  at  his  own  home  in  London, 
with  books,  assistants,  translators,  and  printing-offices 


ALABAMA   CLAIMS.  103 

at  his  command, — in  a  word,  the  whole  force  of  the 
British  Government  at  his  back,  in  which  to  write 
and  print  his  Argument ;  while  it  would  have  afforded 
to  the  American  Counsel  kss  than  four  iceeks  for  the 
same  task,  in  which  to  prepare  and  print  our  Argu 
ment  in  both  languages,  with  no  libraries  at  hand,  no 
translators,  no  printers,  thrown  wholly  on  our  per 
sonal  resources  away  from  home  in  the  heart  of  Eu 
rope. 

The  Counsel  of  the  United  States  desired  no  re- 
argument  of  the  cause.  We  found  nothing  in  the 
British  Argument  which  we  had  not  anticipated  and 
disposed  of  to  our  own  satisfaction.  Not  that  we 
feared  reargurneut :  on  the  contrary,  we  felt  such  com 
plete  confidence  in  our  rights  as  to  be  sure  not  to  lose, 
and  to  hope  rather  to  gain,  by  further  discussion. 
Hence  we  did  not  desire  nor  seek  reargunient,  al 
though  perfectly  ready  for  it  if  called  upon  in  con 
formity  with  the  Treaty.  Our  objections  were  to  the 
delay  and  to  the  departure  from  the  conditions  of  the 
Treaty. 

According  to  the  explicit  language  of  the  Treaty, 
"  the  decision  of  the  Tribunal  shall,  if  possible,  be 
made  within  three  months  from  the  close  of  the  ar 
guments  on  both  sides ;"  and  the  prescribed  day  "  for 
the  close  of  the  arguments  on  both  sides"  is  the  15th 
of  June.  Suppose  that,  by  agreement  of  the  two  Gov 
ernments, — it  could  not  be  done  by  Counsel  without 
consent  of  their  Governments, — "the  close  of  the 
arguments"  had  been  postponed  to  the  31st  of  Au 
gust,  as  proposed  by  Sir  Eoundell  Palmer.  In  that 


104:  THE   TREATY  OF  WASHINGTON. 

event  the  Arbitrators  could  not  in  reason  or  decency 
have  commenced  their  deliberations  until  the  1st  of 
September;  they  might  well  have  taken,  as  they  did 
in  fact  take,  three  months  to  complete  their  delibera 
tions;  and  thus  the  Arbitrators  and  the  American 
Counsel  [but  not  the  English]  would  have  been  de 
tained  at  Geneva  until  the  1st  of  December,  and  there 
fore  would  not  have  been  able  to  reach  their  homes 
until  January. 

But  the  reargument  proposed  by  Sir  Roundell 
Palmer  was  contrary  to  the  Treaty,  which  in  express 
terms  closes  the  rights  of  the  two  Governments  as  to 
hearing,  and  admits  further  discussion  on  their  part 
only  at  the  requisition  of  the  Arbitrators,  "  if  they 
desire  further  elucidation  in  regard  to  any  point." 
[Art.  V.]  Which  manifestly  intends,  not  reargument 
of  the  cause,  but  solution  of  any  doubt,  which,  after  the 
completion  of  the  arguments,  may  occur  to  the  Tri 
bunal.  •  'No  consent  of  Counsel  could  annul  the  stip 
ulations  of  the  Treaty. 

Of  course,  for  reasons  of  right  as  well  as  expedien 
cy,  we  declined  to  accede  to  the  proposition  of  Sir 
Roundell  Palmer. 

Nevertheless,  at  the  meeting  of  the  27th,  immedi 
ately  after  the  conclusion  of  Count  Sclopis's  discourse, 
Lord  Tenterden  presented  a  motion  on  the  part  of 
Sir  Roundell  Palmer  for  leave  to  file  a  written  argu 
ment  in  answer  to  the  Argument  of  the  United  States 
delivered  on  the  loth,  and  requesting  adjournment 
for  that  purpose  until  August.  Sir  Roundell  Palmer 
read  a  brief  of  the  points  he  desired  to  argue,  which 


.       ALABAMA  CLAIMS.  105 

covered  in  effect  all  the  points  of  the  American  "  Case" 
and  "Argument," — that  is  to  say,  it  implied  a  com 
plete  reargurnent  of  the  whole  cause.  It  amounted 
to  assuming  or  admitting  that  no  sufficient  or  proper 
defense  had  yet  been  made  by  the  British  Govern 
ment. 

We,  in  behalf  of  the  United  States,  proceeded  to 
prepare  a  reply  to  this  motion.  We  took  it  up 
point  by  point,  and  showed  by  citation  of  pages  that 
every  one  of  the  proposed  points  had  been  largely 
and  amply  discussed  already  by  Great  Britain  in  her 
"  Case,"  "  Counter-Case,"  and  "  Argument ;"  that  noth 
ing  new  could  be  said  on  these  points ;  and  that,  in 
fact,  the  very  object  proposed  was  to  reiterate  ar 
guments  already  adduced,  but  to  do  it  in  the  inad 
missible  form  of  mere  criticism  of  the  American  Ar 
gument.  And  we  cited  the  Treaty  to  show  that  the 
discussion  proposed  was  contrary  to  the  explicit  con 
tract  of  the  two  Governments. 

Meanwhile  the  Tribunal  proceeded  to  decide,  on 
suggestion  of  Mr.  Adams,  that  the  proposed  argument 
was  inadmissible,  and  that  Counsel  had  no  right  to 
address  the  Tribunal  unless  required  by  it  so  to  do 
for  the  elucidation  of  any  point  under  the  5th  article 
of  the  Treaty. 

At  the  next  meeting  of  the  Tribunal,  on  the  28th, 
Sir  Alexander  Cockburn  presented  a  list  of  eight 
points  covering  in  effect  the  points  of  the  rejected 
motion  of  Sir  Koundell  Palmer,  and  moved  that  the 
Tribunal  require  of  the  Counsel  of  the  two  Govern 
ments  written  or  printed  arguments  on  the  said  points; 


106  THE  TREATY  OF  WASHINGTON. 

but  the  Tribunal  decided  not  at  present  to  require 
such  arguments. 

"Whether  the  motion  of  Sir  Alexander  Cockburn 
was  prompted  by  Sir  Roundell  Palmer,  in  order  to 
afford  to  the  latter  the  desired  opportunity  to  criti 
cise  the  American  "  Argument," — or  whether  it  was 
a  spontaneous  one  arising  from  the  former's  not  hav 
ing  studied  the  case,  and  his  consequent  ignorance  of 
the  fact  that  most  of  the  questions  proposed  had  al 
ready  been  amply  and  sufficiently  discussed  by  both 
Governments, — does  not  distinctly  appear.  Proba 
bly  both  motives  co-operated  to  induce  the  motion. 
Subsequent  incidents  throw  some  light  on  this  point. 
Meanwhile  it  was  plain  to  infer  from  the  observa 
tions  of  the  other  Arbitrators,  and  from  their  deci 
sion,  that  they  were  better  informed  on  the  subject 
than  Sir  Alexander  Cockburn. 

RULES  CONCERNING  THE  CONFERENCES  OF  THE  TRIBUNAL. 

The  Tribunal  next  decided  that  the  Agents  should- 
attend  all  the  discussions  and  deliberations  of  the 
Conferences,  accompanied  by  the  Counsel,  except  in 
case  where  the  Tribunal  should  think  it  advisable  to 
conduct  their  discussions  and  deliberations  with  closed 
doors.     The  practical  effect  of  this  resolution,  w^hen 
connected  with  a  resolution  adopted  at  a  subsequent ( 
meeting  in  regard  to  the  course  of  proceeding,  was  to  j 
enable  and  require  the  Agents  and  Counsel  to  assist ' 
at  the  judicial  consultations  of  the  Tribunal :  it  being  . 
understood,  of  course,  that  none  others  should  be  pres 
ent  save  the  representatives  of  the  two  Governments. 


ALABAMA   CLAIMS.  107 

The  Tribunal  then  authorized  publicity  to  be  given  ( 
to  its  declaration  and  to  the  declarations  of  the  two 
Governments,  relative  to  the  national  claims  of  the  * 
United  States:  after  which  it  adjourned  to  the  15th1 
of  July. 

Heretofore,  either  by  intimation  to  the  Secretary, 
and  to  the  Agents  and  Counsel,  or  by  formal  resolu 
tion,  the  Tribunal  had  signified  its  desire  that-  the  % 
proceedings  should  not  be  committed  to  publicity,  . 
unless  by  the  will  of  the  respective  Governments.  • 
Of  course,  reporters  for  the  Press,  and  other  persons  * 
not  officially  connected  with  the  Arbitration,  were  ex 
cluded  from  the  sittings  of  the  Tribunal.     This  re 
serve  or  secrecy  of  proceeding  was  inconvenient  to 
the  many  respectable  representatives  of  the  Press  of 
London  and  New  York,  persons  of  consideration,  who 
had  come  to  Geneva  for  the  purpose  of  satisfying  the 
public  curiosity  of  the  United  States  and  of  England 
regarding  the  acts  of  the  Tribunal ;  but  was  dictated, 
it  would  seem,  rather  by  considerations  of  delicacy 
toward  the  two  Governments,  than  by  any  reluctance 
on  the  part  of  the  Arbitrators  to  have  their  action 
made  known  day  by  day  to  the  world.     It  was  a  tri 
bunal    of  peculiar    constitution    and   character;   its 
members  were  responsible  in  some  sense  each  to  his 
own  Government,  and  also  to  the  opinion,  at  least,  of 
the  litigant  Governments;  its  proceedings  were  not  \ 
purely  judicial,  but  in  a  certain  degree  diplomatic;   ' 
and  a  large  part  of  the  proceedings  were  in  the  ua-  • 
ture  not  so  much  of  action  as  of  judicial  consultation, 
which  it  miorht  well  seem  unfit  to  communicate  to  the 


108  THE   TREATY   OF   WASHINGTON. 

general  public  as  they  occurred,  although  perfectly  fit 
to  be  thus  communicated  to  the  respective  Govern 
ments. 

The  Tribunal  reassembled  on  the  15th  of  July. 
Down  to  this  time  all  the  proceedings  of  the  Arbitra 
tors  were  in  their  nature  public  acts,  or  they  have 
been  made  public  through  the  respective  Govern 
ments.  AH  such  acts  were  recorded  in  the  protocols. 

Hereafter,  we  shall  have,  in  addition  to  the  acts  of 
the  Tribunal  recorded  in  protocols,  a  series  of  pro 
visional  opinions,  which  wrere  also  printed  and  dis 
tributed  [or  should  have  been]  according  to  express 
order  of  the  Tribunal.  These  opinions  of  the  Arbi 
trators,  as  well  as  their  official  acts,  have  already  been 
made  public  by  both  Governments. 

But,  incidentally  to  such  acts  and  opinions,  there 
was  much  oral  debate  from  time  to  time  at  the  suc 
cessive  Conferences  of  the  Tribunal.  At  these  de 
bates,  the  Agents  and  Counsel  of  both  Governments 
were  required  to  assist,  by  resolution  of  the  Tribunal. 
Assisting,  we  necessarily  heard  what  wras  said  by  the" 
respective  Arbitrators.  We  were  expected  to  hear, 
it  is  presumable,  and  also  to  understand :  otherwise, 
why  required  to  attend  ? 

Are  these  debates,  which  occurred  in  the  presence 
of  so  many  persons,  Agents,  Counsel,  and  others,  to  be 
regarded  as  confidential  and  unfit  to  be  disclosed  now? 
Forget  them,  \ve  can  not,  even  if  copious  notes  of  the 
most  important  debates  did  not  exist  to  aid  and  cor 
rect  mere  memory.  Is  it,  then,  improper  to  speak  of 
them  ?  I  think  not.  I  conceive  that  any  of  us,  who 


ALABAMA   CLAIMS.  109 

possess  knowledge  of  those  debates,  have  perfect  right 
to  refer  to  them  on  all  fit  occasions. 

I  propose,  however,  on  the  present  occasion,  to  ex 
ercise  this  right  sparingly,  and  that  only  in  two  rela 
tions,  namely,  first,  very  briefly,  where  such  reference 
involves  mere  formality,  and  is  almost  inseparable 
from  acts  recorded  in  the  protocols;  and,  secondly, 
with  a  little  more  fullness  at  the  close,  and  with  some 
retrospection,  for  the  purpose  of  explaining  the  final 
act  of  the  British  Arbitrator. 

DISCUSSIONS   OF   THE   TRIBUNAL. 

At  the  meeting  of  the  15th,  discussion  arose  imme-i 
diately  as  to  the  method  and  order  of  proceeding  to 
be  adopted  in  the  consideration  of  the  subjects  refer 
red  to  the  Tribunal. 

Mr.  Staempfli  then  suggested  that  in  his  opinion  the 
proper  course  was  to  take  up  the  case  of  some  vessel, 
as  expressly  required  by  the  Treaty,  and  consider 
whether  on  that  vessel  Great  Britain  was  responsible 
to  the  United  States.  He  had  directed  his  own  in 
quiries  in  this  way,  and  in  this  way  had  arrived  at 
satisfactory  conclusions.  His  plan  had  been  to  select 
a  vessel, — to  abstract  the  facts  proved  regarding  her, 
— and  then  to  apply  to  the  facts  the  special  rules  of 
the  Treaty. 

Debate  on  this  proposition  ensued  between  Sir 
Alexander  Cockburn,  on  the  one  hand,  and  the  rest 
of  the  Arbitrators  on  the  other  hand;  the  former  de 
siring  to  have  preliminary  consideration  of  "  princi 
ples,"  that  is,  of  abstract  questions  of  law,  and  the  lat- 


110  THE   TREATY  OF   WASHINGTON. 

ter  insisting  that  the  true  and  logical  course  was  that 
of  the  Treaty,  namely,  to  take  up  a  case,  to  examine 
the  facts,  and  to  discuss  and  apply  the  law  to  the 
facts  thus  ascertained,  as  proposed  by  Mr.  Stsempfli. 

Finally  it  wras  concluded,  on  the  proposition  of 
Count  Sclopis,  to  follow  substantially  the  programme 
of  Mr.  Staempfli,  that  is,  to  take  up  the  inculpated  ves 
sels,  seriatim,  each  Arbitrator  to  express  an  opinion 
in  writing  thereon,  of  such  tenor  as  he  should  see  fit, 
but  these  opinions  to  be  provisional  only  for  the  pres 
ent,  and  not  to  conclude  the  Arbitrator,  or  to  prevent 
his  modifying  such  opinion,  on  arriving  at  the  point 
of  participation  in  the  final  decision  of  the  Tribunal. 

On  the  16th,  consideration  of  the  programme  of 
Mr.  Stsempfli  was  resumed.  It  consisted  of  the  fol 
lowing  heads,  which  deserve  to  be  set  forth  here,  in 
order  to  show  how  thoroughly  the  subject  had  been 
examined  and  digested  by  Mr.  Staempfli. 

"  (A.)  Indications  generates  : 

1.  Question  a  decider. 

2.  Delimitation  des  faits. 

3.  Principes  generaux. 

"  (B.)  Decision  relative  a  chacun  des  croiseurs. 
Observations  preliminaires : 
1.  Le  Sumter. 
(a)  Faits. 
(6)  Considerants. 
(c)  Jugement." 

[Follow  the  names  of  the  other  vessels,  with  similar  sub-di 
vision  of  heads  of  inquiry.] 

"  (C.)  Determination  du  Tribunal  d'adjuger  une  somme  en  bloc. 
"  (D.)  Examen  des  elements  pour  fixer  une  somme  en.  bloc. 
"  (E.)  Conclusion  et  adjudication  definitive  d'une  somme  en 
bloc." 


ALABAMA  CLAIMS.  Ill 

The  completeness  and  exactness  of  this  programme 
are  self-evident;  and  by  these  qualities  it  really  im 
posed  itself  on  the  Tribunal,  in  spite  of  all  objection, 
and  of  occasional  temporary  departures  into  other 
lines  of  thought.  There  will  be  occasion  hereafter 
to  remark  on  the  precision  and  concision  of  the  opin 
ions  of  Mr.  Stsernpfli. 

SIR  ALEXANDER  COCKBURVS  CALL  FOR  REARGUMEXT. 

-Sir  Alexander  Cockburn  then  renewed  his  propo 
sition  for  a  preliminary  argument  by  Counsel,  set 
ting  forth  analytically  the  various  objects  of  inquiry 
involved  in  the  claims  of  the  United  States,  and  con 
cluding  as  follows : 

"That,  looking  to  the  difficulty  of  these  questions,  and  the 
conflict  of  opinion  which  has  arisen  among  distinguished  ju 
rists  on  the  present  contest,  as  well  as  to  their  vast  importance 
in  the  decision  of  the  Tribunal  on  the  matters  in  dispute,  it  is 
the  duty,  as  it  must  be  presumed  to  be  the  wish,  of  the  Arbi 
trators,  in  the  interests  of  justice,  to  obtain  all  the  assistance 
in  their  power  to  enable  them  to  arrive  at  a  just  and  correct 
conclusion.  That  they  ought,  therefore,  to  call  for  the  assist 
ance  of  the  eminent  counsel  who  are  in  attendance  on  the  Tri 
bunal  to  assist  them  with  their  reasoning  and  learning,  so  that 
arguments  scattered  over  a  mass  of  documents  may  be  pre 
sented  in  a  concentrated  and  appreciable  form,  and  the  Tribu 
nal  may  thus  have  the  advantage  of  all  the  light  which  can  be 
thrown  on  so  intricate  and  difficult  a  matter,  and  that  its  pro 
ceedings  may  hereafter  appear  to  the  world  to  have  been  char 
acterized  by  the  patience,  the  deliberation,  and  anxious  desire 
for  information  on  all  the  points  involved  in  its  decision,  with 
out  which  it  is  impossible  that  justice  can  be  duly  or  satisfac 
torily  done." 

"  To  obtain  all  the  assistance  in  their  power  to  en- 


112  THE   TREATY   OF   WASHINGTON. 

able  them  to  arrive  at  a  just  and  correct  conclusion," 
— "  to  call  for  the  assistance  of  the  eminent  counsel 
who  are  in  attendance  on  the  Tribunal  to  assist  them 
with  their  reasoning  and  learning." 

Analyzing  the  proposition,  and  omitting  the  intro 
ductory  and  concluding  phrases  of  more  or  less  irrel 
evant  and  diffuse  appeal  to  extraneous  considera 
tions,  the  essence  of  the  proposition  is  to  call  on 
Counsel  to  assist  the  Tribunal,  "  so  that  arguments 
scattered  over  a  mass  of  documents  may  be  presented 
in  a  concentrated  and  appreciable  form." 

Now,  passing  over  the  looseness  and  inaccuracy  of 
expression  in  this  statement,  it  plainly  is  incorrect  in 
substance.  The  considerations  of  law  or  fact  neces 
sary  for  the  instruction  of  the  Tribunal  are  not  "  scat 
tered  over  a  mass  of  documents ;"  they  are  "  presented 
in  a  concentrated  .  .  .  form"  [we  do  not  say  apprecia 
ble,  because  that  is  not  a  quality  intelligible  as  ap- 
p&§d  toform~]  in  the  three  arguments  of  each  of  the 
Governments, — that  is  to  say,  "Cases,"  "Counter- 
Cases,"  and  "  Arguments."  The  proposition  betrays 
singular  confusion  of  mind  on  the  part  of  a  nisiprius 
lawyer  and  judge.  The  subjects  or  elements  of  ar 
gument  are,  it  is  true,  "scattered  over  a  mass  of  doc 
uments  ;"  but  it  is  quite  absurd  to  apply  this  phrase 
to  the  Arguments  themselves,  in  which  the  two  Gov 
ernments  had  each  labored,  we  may  suppose,  to  ex 
hibit  their  views  of  the  law  and  the  facts  in  a  man 
ner  to  be  readily  comprehended  and  appreciated  by 
the  Tribunal.  In  the  Arguments  proper,  filed  on  the 
15th  of  June,  each  Agent  had,  as  the  Treaty  requires, 


ALABAMA   CLAIMS.  113 

delivered  "  to  each  of  the  said  Arbitrators  and  to  the 
Agent  of  the  other  party  a  written  or  printed  argu 
ment  showing  the  points  and  referring  to  the  evi 
dence  on  which  his  Government  relies."  These  "  Ar 
guments  "  were  freshly  in  the  possession  of  the  Arbi 
trators.  To  call  on  Counsel/or  the  reason  assigned, 
to  reargue  the  matters  therein  argued,  was  just  as 
unreasonable  as  it  would  be  for  a  judge  presiding  at 
a  hearing  in  common  law,  equity,  or  admiralty,  to 
call  on  the  counsel,  who  have  just  finished  their  ar 
guments,  to  do  something  for  the  "assistance"  of  the 
Court, — it  would  be  difficult  to  see  what, — to  the  end 
"  that  arguments  scattered  over  a  mass  of  documents 
may.be  presented  in  a  concentrated  and  appreciable 
form."  And  if  in  this  case  such  arguments  had  been 
filed  in  print,  it  would  be  natural  for  counsel  to  say 
that  they  had  just  done  the  thing  required  of  them, 
as  the  Court  would  perceive  if  it  would  please  to 
read  those  arguments :  which,  in  the  present  case,  it 
would  seem,  Sir  Alexander  had  neglected  to  do ;  and, 
instead  of  doing  it,  he  had  got  bewildered  by  plung 
ing  unpreparedly  into  the  "  mass  of  documents"  filed 
by  the  two  Governments. 

After  discussion,  the  Tribunal  decided  to  proceed 
with  the  case  of  the  Florida,  according  to  the  pro 
gramme  of  Mr.  Sttempfli,  that  is,  in  effect,  overruling 
the  motion  of  Sir  Alexander  Cockburn. 

The  Tribunal,  it  would  seem,  could  not  perceive 
the  advantage  of  discussing  speculative  general  ques 
tions,  as  in  a  moot  court ;  and,  more  especially,  ques 
tions  of  law,  which  had  already  been  discussed  abun- 

H 


THE   TREATY   OF   WASHINGTON. 

dantly  in  the  appropriate  place  and  time,  that  is,  in 
the  successive  Cases  and  Arguments  of  the  two  Gov 
ernments. 

CASE   OF  THE  "FLORIDA"  DECIDED. 

The  Arbitrators  then  met  on  the  17th,  and  pro 
ceeded  to  take  up  the  case  of  the  Florida. 

On  motion  of  Sir  Alexander  Cockburn,  it  was  or 
dered  by  the  Tribunal  that  the  provisional  opinions  or 
statements  to  be  read  by  the  Arbitrators  should  be 
printed,  and  distributed  to  the  Arbitrators  and  to  the 
Agents  and  Counsel  of  the  two  Governments. 

Mr.  Stsempfli's  opinion  or  statement  had  been  read 
already,  and  was  in  print. 

After  some  incidental  discussion  among  the  Arbi 
trators,  Sir  A.  Cockburn  began  the  reading  of  his 
opinion  on  the  case  of  the  Florida. 

The  Tribunal  met  again  on  the  19th,  and  Sir  Alex 
ander  Cockburn  proceeded  to  read  another  portion  of 
his  opinion  in  the  case  of  the  Florida. 

Then,  after  some  debate,  caused  by  irregularities  of 
speech  or  conduct  on  the  part  of  Sir  Alexander,  Mr. 
Adams  proceeded  to  read  the  commencement  of  his 
opinion  in  the  matter  of  the  Florida. 

On  the  22d,  the  case  of  the  Florida  wsts  concluded. 
Sir  Alexander  Cockburn  and  Mr.  Adams  completed 
the  reading  of  their  opinions,  and  the  Baron  d'ltajuba 
and  Count  Sclopis  both  read  theirs.  The  result  was 
to  convict  Great  Britain  of  culpable  want  of  due 
diligence  in  the  matter  of  the  Florida  by  the  con 
current  provisional  opinions  of  four  of  the  Arbitra- 


ALABAMA  CLAIMS.  115 

tors,  with  a  dissenting  opinion  from  the  British  Ar 
bitrator. 

The  Florida,  it  will  be  remembered,  was  a  steam 
gun-boat,  built  at  Liverpool  by  Miller  &  Sons,  on( 
contract  with  the  Confederate  agent  Bullock,  for  the J 
warlike   use   of  the   Confederates.      Miller  &  Sons 
falsely  pretended  that  she  was  being  built  for  the 
Italian  Government   by  arrangement   with   Messrs. 
Thomas  <fc  Brothers  of  Liverpool  and  Palermo,  one  of  j 
whom  expressly  and  fraudulently  confirmed  the  false ; 
representation  of  Miller  &  Sons.     The  British  Gov 
ernment,  although  repeatedly  warned  of  the  illegal 
character  of  this  vessel  by  the  diplomatic  and  con 
sular  authorities  of  the  L'nited  States,  shut  its  eyes 
to  the  transparent  falsehood  and  fraud  of  Miller  & 
Sons  and  of  Thomas,  and  took  no  proper  and  suffi 
cient  measures  to  investigate  her  character  and  to 
prevent  the  violation  of  the  laws  of  the  kingdom. 
She  sailed  from  Liverpool  without  obstruction,  cleared  | 
by  the  name  of  Oreto,  unarmed,  it  is  true,  but  ac 
companied  by  another  vessel  containing  her  arma 
ment,  called  the  Bahama. 

The  Oreto  next  makes  her  appearance  at  Nassau, 
where  she  proceeded  further  to  equip  and  arm  as  a 
man-of-war.  The  naval  authorities  at  Nassau  were 
unanimous  in  denouncing  her  illegal  character,  but 
the  civil  authorities,  perverted  by  their  sympathies, 
could  with  difficulty  be  persuaded  to  act  against  her. 
When  they  did  act,  she  was  acquitted  by  the  local 
Admiralty  Court,  in  the  teeth  of  the  facts  and  the 
law,  either  corruptly,  or  with  inexplicable  ignorance 


116  THE  TREATY  OF  WASHINGTON. 

of  their  duty  on  the  part  of  the  Court  and  of  the 
attorney  representing  the  Government.  No  appeal 
was  taken  by  the  Government. 

The  Oreto  then  threw  off  all  pretensions  of  inno 
cence;   she  openly  completed  her  equipment,  arma 
ment,  and  crew,  partly  at  one  place  and  partly  at  an 
other,  under  the  eye  of  the  colonial  authorities ;  and 
proceeded  to  cruise  and  to  make  prizes  as  an  avowed 
man-of-war  by  the  name  of  Florida.    Mean  while,  with 
the  illegality  of  her  operations  in  England,  and  also 
in  the  Bahama  Islands,  now  notorious  and  admitted, 
i  she  continued  to  come  and  go  in  British  ports,  and  to 
|  obtain  supplies  there  as  her  base  of  operations,  without 
v  interference  on  the  part  of  the  British  Government. 

On  these  facts,  the  three  neutral  Arbitrators  and 
Mr.  Adams  convicted  flie  British  Government  of  want 
of  due  diligence,  and  of  disregard  otherwise  of  the 
Eules  of  the  Treaty,  notwithstanding  that  the  Florida 
had  entered  and  remained  some  time  in  the  Confed 
erate  port  of  Mobile. 

Their  several  opinions  were  precise,  definite,  clear, 
j  and  with  positive  conclusion,  as  to  all  the  material 
'  points  of  the  case,  in  favor  of  the  United  States. 

Sir  Alexander  Cockburn's  adverse  opinion  was  a 
verbose  special  plea, — which,  wiiile  admitting  all  the 
material  facts  charged,  and  conceding  the  palpable 
fraud  practiced  by  Miller  &  Sons  and  Thomas, — the 
original  guilt  of  the  vessel, — the  absurdity  of  the  ac 
tion  of  the  Admiralty  Court  of  Nassau, — the  illegal 
equipments  at  Nassau  and  elsewhere  in  British  ports. 
— and  the  continued  use  of  British  ports  as  a  base  of 


ALABAMA  CLAIMS.  117 

operations, — could  not  discover  in  these  incidents  anyl 
negligence  or  any  violation  of  neutrality  on  the  part| 
of  the  British  Government.  Sir  Alexander  chose  not 
to  remember  that  the  affair  of  the  Oreto  or  Florida 
was,  from  the  be^innin^  to  the  end,  according  to  the 

O  O  '  O 

confession  of  Lord  John  Kussell  himself,  a  scandali 
and  a  reproach  to  the  laws  of  Great  Britain,  and  stilll 
more,  we  may  add,  a  scandal  and  a  reproach  to  cer 
tain  of  the  British  Ministers,  of  whose  honor  Sir  Alex 
ander  assumes  to  be  the  special  champion. 

When  Count  Sclopis  had  concluded  the  reading  of 
his  opinion,  Sir  Alexander  Cockburn  renewed  his  mo 
tion  for  the  hearing  of  Counsel ;  but  was  again  over 
ruled  by  the  Tribunal,  which  assigned  for  its  next 
Conference  the  consideration  of  the  case  of  the  Ala- 
lama. 

• 

SPECIAL  ARGUMENTS   ORDERED  OX   CERTAIN  POINTS. 

The  Tribunal  met  again  on  the  25th ;  and  the  Bar 
on  d'ltajubd  then  made  a  precise  and  formal  propo 
sition,  calling  on  the  Counsel  of  Great  Britain  for  a 
written  or  printed  Statement  or  Argument  in  elucida 
tion  of  three  questions  of  law,  namely : 

"  1.  The  question  of  due  diligence  treated  in  a  general  man 
ner. 

"  2.  The  effect  of  commissions  possessed  by  Confederate  ves 
sels  of  war  which  had  entered  into  British  ports. 

"  3.  The  supplies  of  coal  furnished  to  Confederate  vessels  in 
British  ports." 

And  with  liberty  to  the  Counsel  of  the  United  States 
to  reply  either  orally  or  in  writing  as  the  case  may  be. 
This  proposition  was  adopted  by  the  Tribunal. 


118  THE  TREATY  OF  WASHINGTON. 

In  so  far  as  regards  the  first  point,  the  call  for  Ar 
gument  was  obviously  induced  by  a  desire  to  put  an 
end  to  the  unseemly  importunities  of  Sir  Alexander 
Cockburn;  for  the  Arbitrators  had  in  effect  again 
and  again  declared  that  in  their  judgment  there  was 
no  occasion  for  elucidation  or  further  discussion  of 
the  general  question  of  due  diligence;  that  the  Tri 
bunal  did  not  desire  any  theoretical  discussions  of 
abstract  questions;  and  that  the  practical  question 
of  due  diligence  had  been  already  discussed  to  satiety 
in  the  several  Cases  and  Arguments  filed  by  the  re 
spective  Governments,  We  shall  perceive  in  the  se 
quel  how  well-founded  were  the  objections  of  the  Tri 
bunal  in  this  respect ;;  and  how  devoid  of  any  useful 
object  or  purpose  had  been  the  ill- digested  calls  of 
Sir  Alexander  Cockburn. 

To  the  other  questions  propounded  by  the  Baron 
dTtajubd,,  no  objection  could  be  made :  they  were  fit 
subjects  of  the  "elucidation"  contemplated  by  the 
Treaty. 

CASE  OF  THE  "ALABAMA"  DECIDED.    - 

The  Arbitrators  then  proceeded  to  read  alphabet 
ically  their  opinions  in  the  case  of  the  Alabama, — that 
is  to  say,  Mr.  Adams,  Sir  Alexander  Cockburn,  Count 
Sclopis,  and  Mr.  Stsempni  read  argumentative  state 
ments  at  length,  and  the  Baron  d'ltajubd  expressed 
his  concurrence  in  the  statement  made  by  Sir  Alex 
ander  Cockburn. 

In  this  case  the  Arbitrators  wrere  unanimously  of  I 
opinion,  —  the  British  Arbitrator   equally  with  his\l 


ALABAMA  CLAIMS.  119 

colleagues, — that  the  British  Government  had  been 
guilty  of  culpable  want  of  the  due  diligence  required, 
either  by  the  law. of  nations,  the  Rules  of  the  Treaty, 
or  Act  of  Parliament. 

In  fact,  this  vessel  had  been  built  and  fitted  out  in/ 
Great  Britain  in  violation  of  her  laws,  with  intent  to! 
carry  on  war  against  the  United  States ;  evidence  of  \ 
this  fact  had  been  submitted,  sufficient2  in  the  opinion 
of  the  Law  Officers  of  the  Crown,  to  justify  her  de 
tention  ;  notwithstanding  which,  by  reason  of  absence 
of  due  vigilance,  and.  not  without  suspicion  of  conniv-f 
ance  on  the  part  of  public  officers,  and  with  extraor 
dinary  delay  in  issuing  necessary  orders,  she  was  suf-f 
fered  to  go  unmolested  out  of  the  immediate  jurisdic 
tion  of  the  British  Government.    Her  armament,  sup-i 
plies,  and  crew  were  all  procured  from  Great  BritainJ 
And,  in  like  violation  of  law,  she  was  received  and 
treated  as  a  legitimate  man-of-war  in  the  colonial  ports 
of  Great  Britain. 

Sir  Alexander  Cockburn  was  constrained  to  admit 
want  of  due  diligence  as  to  the  case  of  the  Alabama, 
in  three  distinct  classes  of  facts,  each  one  of  which 
sufficed  to  establish  the  responsibility  of  the  British 
Government. 

If  Sir  Alexander  had  any  good  cause  to  accuse  his 
colleagues,  as  he  did,  of  precipitancy  and  want  of 
knowledge  or  practice  of  law,  because  they  came  to 
provisional  conclusions  in  the  case  of  the  Florida 
without  waiting  to  hear  Sir  Roundell  Palmer,  surely 
the  British  Government  had  reason  to  attach  the 
same  censure  to  him  in  the  case  of  the  Alabama. 


120  THE  TREATY   OF   WASHINGTON. 

How  could  be  presume  to  condemn  Great  Britain  in 
this  behalf,  ignorantly,  blindly,  in  the  dark,  and  with 
out  assistance  of  the  "  reasoning  and  learning  "  of  the 
eminent  Counsel  in  attendance  on  the  Tribunal  ? 

But  even  Sir  Alexander  Cockburn  could  no  longer 
resist  the  force  of  conviction,  nor  help  admitting  the 
truth  of  the  allegation  of  the  United  States,  their 
Agent  and  Counsel,  imputing  culpable  negligence  to 
his  Government.  The  United  States  had,  not  with 
out  cause,  brought  the  British  Government  to  the  bar 
of  public  opinion  and  of  the  Tribunal  of  Arbitration ; 
himself  now  confessing  it,  their  Agent  arid  Counsel 
had  not  been  engaged,  as  he  had  charged,  in  prefer 
ring  "  false  accusations,  unworthy  of  them  and  of 
their  Government."  And  if  the  proved  and  admit 
ted  truth  of  these  accusations  implies  impeachment 
of  the  personal  honor  of  any  British  Minister  or  Min 
isters,  that  is  not  the  fault  of  the  American  Govern 
ment,  its  Agent  or  Counsel,  but  of  the  British  Gov 
ernment,  whose  violation  of  neutrality  is  at  length 
conceded  even  by  Sir  Alexander  Cockburn. 

In  the  ultimate  judgment  of  all  the  Arbitrators, 
the  condemnation  of  the  Alabama  and  the  Florida 
carried  with  it  the  condemnation  of  their  respective 
tenders,  namely,  the  Tuscaloosa,  the  Clarence,  the  Ta- 
cony,  and  the  Archer. 

CASE  OF  THE  "  SHENANDOAII "  DECIDED. 

There  remained  but  three  vessels  as  to  whose  re 
sponsibility  we  had  reason  to  have  hopes,  namely, 
the  Georgia,  the  JRetribution,  and  the  Shenandoali ; 


ALABAMA  CLAIMS.  121 

and  with,  confident  expectation  only  as  to  the  Slien- 
andoali  after,  she  left  Melbourne.     Without  pausing 
here  to  consider  particularly  the  Retribution  and  the 
Georgia,  suffice  it  to  say  that  eventually  they  were/ 
rejected;  but  the  Slienandoali,  after  special  explana-i 
tioris  in  writing  submitted  by  the  Counsel  of  the  two' 
Governments,  was  held  responsible  by  vote  of  three 
of  the  Arbitrators,  Count  Sclopis,  Mr.  Stsempfli,  and 
Mr.  Adams.     As  the  Shenandodh,  after  increasing 
her  armament  at  Melbourne,  had  made  many  captures  j 
at  the  very  close  of  the  war,  when  her  cruise  could 
not  be  of  any  possible  advantage  to  the  Confederates, 
her  exoneration  by  the  Tribunal  would  have  been 
justly  regarded  by  us  as  an  act  of  great  injustice  to 
the  United  States. 

THE  SPECIAL  ARGUMENTS. 

It  remains  next  to  speak  of  the  successive  Argu 
ments  of  Counsel  before  the  Tribunal,  as  well  those 
heretofore  indicated  as  others  called  for  in  the  sequel. 

On  the  25th  of  July,  as  we  have  seen,  the  Tri 
bunal  voted  to  require  from  the  Counsel  of  Great 
Britain  a  written  or  printed  Argument  touching  cer 
tain  points. 

On  the  29th,  Lord  Tenterdeu  announced  that  he 
had  delivered  the  required  Argument  of  the  British 
Counsel  to  the  Secretary  of  the  Tribunal. 

The  copy  thus  delivered  was  in  manuscript.  As 
subsequently  printed,  it  consists  of  43  folio  pages. 

The  replies  of  the  American  Counsel,  each  of  them 
addressing  the  Tribunal  separately,  were  presented 


122  THE  TREATY  OF  WASHINGTON. 

on  the  5th,  6th,  and  8th  of  .August,  consisting  alto- 
gether  of  47  pages  of  the  same  folio  impression. 

It  would  not  be  convenient,  and  it  does  not  come 
within  my  plan,  to  discuss  the  Arguments  of  Counsel 
on  either  side,  except  where  some  particular  point  of 
such  Argument  calls  for  notice.  Hence,  as  in  the 
case  of  the  general  Arguments  of  April  and  of  June, 
so  as  to  the  special  Arguments  called  for  by  the  Tri 
bunal,  it  will  be  sufficient  to  enumerate  them,  and  to 
give  to  them  their  proper  place  in  the  history  of  the 
Arbitration. 

The  first  Argument  of  Sir  Eoundell  Palmer,  how 
ever,  calls  for  some  observations. 

Of  his  43  pages,  31, — say  three  quarters, — are  de 
voted  nominally  to  the  question  of  due  diligence  gen 
erally  considered. 

Now,  in  the  previous  regular  Arguments,  each  Gov 
ernment  had  fully  discussed  this  question,  and  had, 
as  if  by  common  consent,  concluded  in  express  terms 
that  it  neither  required  nor  admitted  any  further  dis 
cussion.  That  conclusion  was  correct.  Accordingly, 
most  of  these  31  pages  are  occupied  with  matters  re 
motely,  if  at  all,  connected  with  the  question,  What 
constitutes  due  diligence  ? — such  as  [copying,  word  for 
word,  sundry  marginal  notes]  rules  and  principles 
of  international  law ;  express  or  implied  engagements 
of  Great  Britain;  effect  of  prohibitory  municipal  laws; 
the  three  Eules  of  the  Treaty;  the  maxims  cited  by 
the  United  States  from  Sir  Kobert  Phillimore  on  the 
question,  Civitas  ne  deliquerit  an  cives;  for  what  pur 
pose  Great  Britain  refers  to  her  municipal  laws ;  doc- 


01    THE          *' 

A,AB.u,,  CLAIM,  pNIVE^If 


trine  of  Tetens  as  to  municipal  laws  in  e: 
cedent  international  obligations;  the  arguments  as 
to  the  prerogative  powers  belonging  to  the  British 
Crown;  the  true  doctrine  as  to  the  powers  of  the 
Crown  under  British  law;  the  British  Crown  has 
power  by  common  law  to  use  the  civil,  military,  and 
naval  forces  of  the  Realm  to  stop  acts  of  war  within 
British  territory;  the  preventive  powers  of  British 
law  explained ;  examination  of  the  preventive  pow 
ers  of  the  American  Government  under  the  Acts  of 
Congress  for  the  preservation  of  neutrality : — and  so 
of  diverse  other  questions  discussed  by  Sir  Roundell 
Palmer  under  the  head  of  due  diligence  generally 
considered.  Very  generally,  it  is  clear.  Nay,  13  of 
the  31  pages  devoted  to  the  question  of  "due  dil 
igence  generally  considered"  are  occupied  with  ex 
amination  of  the  laws  and  political  history  of  the 
United  States,  in  continuance  and  iteration  of  the 
groundless  and  irrelevant  accusations  of  the  Ameri 
can  Government  introduced  into  the  British  Case  and 
Counter-Case. 

Now  Sir  Roundell  Palmer  is,  omnium  consensiij  at 
the  head  of  the  British  Bar  in  learning,  intelligence, 
and  integrity ;  and  we  may  be  sure  that  arguments 
addressed  by  him  to  the  Tribunal  would  be  the  best 
that  such  a  lawyer,  so  high  in  mental  and  moral  qual 
ities,  or  that  any  living  lawyer,  be  he  who  he  may, 
could  devise  or  conceive.  The  British  Arbitrator  had 
gone  "clean  daft"  in  the  hope  deferred  of  hearing  him. 
He  himself  had  been  earnestly  seeking  to  be  heard 
by  the  Tribunal  for  more  than  a  month ;  he  had  com- 


124:  THE   TREATY  OF  WASHINGTON. 

templated  being  heard  for  many  months.  And  the 
result  of  all  this  meditation,  and  of.  all  this  earnest 
desire  to  serve  his  country,  was  a  series  of  arguments 
mostly  immaterial  to  the  issue,  as  the  final  judgment 
of  the  Tribunal  plainly  shows,  and  coming  in  after  the 
main  question  had  been  actually  settled  in  the  cases 
of  the  Alabama  and  the  Florida.  That  is  to  say,— 
and  it  is  in  this  relation  the  point  is  introduced, — 
the  claims  of  the  United  States  rested  on  a  basis 
which  all  the  great  forensic  skill  and  ability  of  Sir 
Koundell  Palmer  could  not  move, — which  commend 
ed  itself  to  the  confidence  of  the  neutral  Arbitrators, 
—and  which  even  extorted  the  reluctant  adhesion  of 
the  prejudiced  British  Arbitrator. 

Subsequently,  on  requirement  of  the  Arbitrators, 
we  discussed,  in  successive  printed  Arguments,  the 
special  question  of  the  legal  effect  of  the  entry  of 
the  Florida  into  Mobile ;  the  question  of  the  recruit 
ment  of  men  for  the  Slienandoah  at  Melbourne ;  and 
the  question  of  interest  as  an  element  of  the  indemni 
ty  due  to  the  United  States. 

QUESTION  OF  DAMAGES. 

Meanwhile,  the  Tribunal  had  voted  definitively  on 
the  question  of  the  liability  or  non-liability  of  Great 
Britain  for  the  acts  of  the  cruisers  named  in  the 
"  Case"  of  the  United  States,  in  the  terms  which  will 
appear  in  explaining  their  final  judgment.  They  had 
also  voted  on  several  of  the  incidental  questions,  such 
as  the  abstract  question  of  due  diligence,  entry  into 
Confederate  ports,  commission,  and  supply  of  coal, 


ALABAMA  -  CLAIMS.  125 

raised  by  successive  requirements  of  the  Tribunal. 
They  had  thus  arrived  at  the  point  of  discussing 
matters,  which  only  affected  the  form  and  the  amount 
of  the  judgment  to  be  rendered  against  Great  Britain, 

And  here,  on  the  26th  of  August,  the  Tribunal 
voted  to  deliberate  with  closed  doors,  in  spite  of  the 
objection  of  Sir  Alexander  Cockburn. 

Thenceforth,  and  until  the  final  Conference  of  the 
14th  of  September,  the  Tribunal  sat  with  closed  doors, 
that  is,  without  the  assistance  of  the  Agents  and 
Counsel. 

Down  to  this  time,  the  Agent,  Counsel,  Solicitor, 
and  Secretaries  of  the  United  States  had  been  assid 
uously  occupied  in  preparing,  copying,  translating,  and 
printing  Arguments  and  other  documents  for  the  use 
of  the  Tribunal.  And  even  when  the  regular  dis 
cussions  were  ended,  we  had  still  to  attend  to  the 
laborious  task  of  preparing  schedules  of  the  claims 
of  the  United  States  in  response  to  argumentative 
estimates  filed  by  the  British  Government. 

FINAL  JUDGMENT  OF  THE  TRIBUNAL. 

On  the  9th  of  September  the  Arbitrators  defin 
itively  adopted  the  Act  of  Decision,  which  had  been 
considered  at  the  preceding  Conference,  and  ordered 
it  to  be  printed.  They  also  resolved  that  the  Decis 
ion  should  -be  signed  at  the  next  Conference,  to  be 
held  with  open  doors,  and  they  then  adjourned  to  the 
Uth. 


126  THE  TREATY  OF  WASHINGTON. 

ANNOUNCEMENT  OF  THE  DECISION. 

On  Saturday,  the  14th  of  September,  the  Tribunal 
assembled  at  the   hour   of  adjournment, — half-past 
twelve  o'clock.    The  Hall  of  Conference  was  crowded 
at  this  hour  with  the  Arbitrators  and  the  gentlemen 
attached  to  the  Arbitration,  the  ladies  of  their  respect 
ive  families,  the  members  of  the  Cantonal  Govern 
ment,  representatives  of  the  Press  of  Switzerland,  the 
United  States,  and  Great  Britain,  and  gentlemen  and 
ladies  among  the  most  estimable  of  the  private  cit 
izens  of  Geneva.     The  day  was  beautiful ;  the  scene 
imposing  and  impressive.   But  the  British  Arbitrator,  { 
Sir  Alexander  Cockburn,  remained  unaccountably  ab-  ^ 
sent,  while  curiosity  grew  into  impatience,  and  impa-  ( 
tience  into  apprehension,  until  long   after  the  pre-  -. 
scribed  hour  of  meeting,  when  the  British  Arbitrator 
finally  made  his  appearance. 

The  official  action  of  the  Conference  commenced 
with  the  accustomed  formalities. 

The  President  then  presented  the  Act  of  Decision 
of  the  Tribunal,  and  directed  the  Secretary  to  read  it 
in  English,  which  was  done :  after  which  duplicate 
originals  of  the  Act  were  signed  by  Mr.  Adams,  Count 
Frederic  Sclopis,  Mr.  Stasmpfli,  and  Viscount  of  Itajuba; 
and  a  copy  of  the  Decision,  thus  signed,  was  delivered 
to  each  of  the  Agents  of  the  two  Governments  re 
spectively. 

Another  original  \vas  subscribed  in  like  manner,  to 
be  placed,  together  with  the  archives  of  the  Tribunal, 
amo.'ng  the  archives  of  the  Council  of  State  of  the  Car.' 
ton  of  Geneva. 


ALABAMA  CLAIMS.  127 

Sir  Alexander  Cockburn,  as  one  of  the  Arbitrators, 
declining  to  assent  to  the  Decision,  presented  a  state 
ment  of  his  "  Reasons,"  which,  without  reading,  the 
Tribunal  ordered  to  be  received  and  recorded. 

Thereupon,  in  an  appropriate  address,  Count  Sclopis 
declared  the  labors  of  the  Arbitrators  to  be  finished, 
and  the  Tribunal  dissolved. 

The  discourse  of  Count  Sclopis  was  immediately 
followed  by  salvos  of  artillery,  discharged  from  the 
neighboring  site  of  La  Treille  by  order  of  the  Can 
tonal  Government,  with  display  of  the  flags  of  Geneva 
and  of  Switzerland  between  those  of  the  United  States 
and  of  Great  Britain. 

It  is  impossible  that  any  one  of  the  persons  present 
on  that  occasion  should  ever  lose  the  impression  of 
the  moral  grandeur  of  the  scene,  where  the  actual 
rendition  of  arbitral  judgment  on  the  claims  of  the 
United  States  against  Great  Britain  bore  witness  to 
the  generous  magnanimity  of  two  of  the  greatest  na 
tions  of  the  world  in  resorting  to  peaceful  reason  as 
the  arbiter  of  grave  national  differences,  in  the  place 
of  indulging  in  baneful  resentments  or  the  vulgar 
ambition  of  war.  This  emotion  was  visible  on  almost 
every  countenance,  and  was  manifested  by  the  ex 
change  of  amicable  salutations  appropriate  to  the 
separation  of  so  many  persons,  who,  month  after 
month,  had  been  seated  side  by  side  as  members  of 
the  Tribunal,  or  as  Agents  and  Counsel  of  the  two 
Governments ;  for  even  the  adverse  Agents  and  Coun 
sel  had  contended  with  courteous  weapons,  and  had 
not,  on  either  side,  departed,  intentionally  or  con- 


128         THE  TREATY  OF  WASHINGTON. 

sciously,  from  the  respect  due  to  themselves,  to  one 
another,  and  to  their  respective  Governments. 

CONDUCT  OF  THE  BRITISH  ARBITRATOR. 

To  the  universal  expression  of  mutual  courtesy  and 
reciprocal  good- will  there  was  but  one  exception,  and 
that  exception  too  conspicuous  to  pass  without  notice. 

The  instant  that  Count  Sclopis  closed,  and  before 
the  sound  of  his  last  words  had  died  on  the  ear,  Sir 
Alexander  Cockburn  snatched  up  his  hat,  and,  with 
out  participating  in  the  exchange  of  leave-takings 
around  him,  without  a  word  or  sign  of  courteous  rec 
ognition  for  any  of  his  colleagues,  rushed  to  the  door 
and  disappeared,  in  the  manner  of  a  criminal  escaping 
from  the  dock,  rather  than  of  a  judge  separating,  and 
that  forever,  from  his  colleagues  of  the  Bench.  It  was 
one  of  those  acts  of  discourtesy  which  shock  so  much 
when  they  occur  that  we  feel  relieved  by  the  disap 
pearance  of  the  perpetrator. 

SIR  ALEXANDER  COCKBURN'S  REASONS  FOR  DISSENT. 

The  British  Arbitrator,  who,  so  frequently  in  the 
course  of  the  Conferences,  acted  as  a  party  agent 
rather  than  a  judge,  had  been  occupying  himself  in 
the  preparation  of  a  long  Argument  on  the  side  of 
Great  Britain,  in  which  he  throws  off  the  mask,  and 
professedly  speaks  as  the  representative  of  the  Brit 
ish  Government.  He  withheld  this  Argument  from 
the  knowledge  of  the  Tribunal  at  the  proper  time 
for  its  presentation  as  the  "Keasons"  of  an  Arbitrator. 
At  the  last  moment, — without  its  being  read  to  the 


ALABAMA  CLAIMS.  129 

Tribunal,  or  printed  for  the  information  of  Agents 
and  Counsel,  as  a  resolution  of  the  Tribunal,  adopted 
on  his  own  motion,  required,1 — he  presents  this  Argu 
ment  as  his  "Reasons  .  .  .  for  dissenting  from  the 
Decision  of  the  Tribunal  of  Arbitration."  The  title 
of  the  document  is  a  false  pretense,  as  we  shall  con 
clusively  show  -in  due  time :  the  act  was  a  dishonor 
able  imposition  on  the  Tribunal,  and  on  both. Gov 
ernments,  Great  Britain  as  much  as  the  United 
States. 

In  point  of  fact,  the  document  filed  by  Sir  Alexan 
der  was  in  large  part  of  such  a  character  that,  if  it 
had  been  offered  for  filing  at  any  proper  time,  and 
with  opportunity  to  persons  concerned  to  become  ac 
quainted  with  its  contents,  it  must  [as  declared  by 
the  Secretary  of  State  of  the  United  States  in  his  dis 
patch  to  the  American  Agent  of  October  22,  1872] 
have  been  the  plain  duty  of  the  American  Agent 
to  object  to  its  reception,  and  of  the  Tribunal  to  re 
fuse  it,  as  calculated  and  designed  to  weaken  the  just 
authority  of  the  Arbitrators,  as  insulting  to  the  United 
States  in  the  tenor  of  much  of  its  contents,  and  as  in 
jurious  to  Great  Britain  by  its  tendency  to  raise  up 
obstacles  to  the  acceptance  of  the  Award,  and  to  pro 
duce  alienation  between  the  two  Governments. 

The  document  consisted,  in  part,  of  the  opinions  of 
Sir  Alexander  Cockburn  on  the  several  vessels,  copies 
of  which  he  ought  to  have  delivered  in  print  to  the 
Agent  and  Counsel  of  the  United  States,  in  conform 
ity  with  his  own  resolution,  but  which  he  failed  to 
do,  thus  depriving  the  American  Government  of  ad- 

I 


130  THE  TREATY  OF  WASHINGTON. 

vantages  in  this  relation  to  which  it  was  entitled, 
and  which  the  British  Government  in  fact  enjoyed 
by  reason  of  the  more  loyal  conduct  of  the  other  Ar 
bitrators. 

He  discusses  these  vessels  with  great  prolixity,  so 
as  to  fill  180  pages  folio  letter-press,  while  the  corre 
spondent  opinions  of  all  the  other  Arbitrators  united 
occupy  only  66  pages,  the  difference  being  occasioned 
partly  by  the  number  of  letters  and  other  papers  in 
terjected  into  his  opinions,  and  partly  by  the  diffuse- 
ness  and  looseness  of  his  style  and  habit  of  thought, 
as  compared  with  theirs. 

The  residue  of  Sir  Alexander's  document,  consist 
ing  of  116  pages,  is  devoted  partly  to  the  discussion 
of  the  special  questions,  in  all  which  he  is  inordinate 
ly  prolix,  and  partly  to  a  general  outpouring  of  all 
the  bile  which  had  been  accumulating  on  his  stom 
ach  during  the  progress  of  the  Arbitration. 

SIR  ALEXANDER  COCKBURN'S  "REASONS." 

Let  me  dispose  once  for  all  of  these  "Reasons"  and 
their  author,  in  order  to  arrive  at  subjects  of  more 
importance  and  interest.  The  matter  of  the  docu 
ment,  and  the  consideration  it  has  received  in  En 
gland,  require  that  it  should  be  examined  and  judged 
from  an  American  stand-point. 

Apart  from  the  unjudicial  violence  and  extrava 
gance  of  these  "  Reasons,"  it  is  remarkable  how  in 
consistent,  how  self -contradicting,  how  destitute  of 
logical  continuity  of  thought,  how  false  as  reasoning,  as 
well  as  irrelevant,  is  most  of  the  matter. 


ALABAMA   CLAIMS.  131 

The  Reasons  are  on  their  face,  and  as  the  London 
Press  could  not  fail  to  perceive  and  admit, "  an  elab 
orate  reply  to  the  American  Case"  [that  is  to  say,  an 
advocate's  plea],  u  rather  than  a  judicial  verdict." 
[Telegraph,  September  25.] 

It  is,  in  truth,  a  mere  nisi  prius  argument,  not  up 
to  the  level  of  an  argument  in  bane;  inappropriate 
to  the  character  of  a  judge;  and  which  might  have 
been  quite  in  place  at  Geneva  as  an  u Argument"  in 
the  cause,  provided  any  British  Counsel  could  have 
been  found  to  write  so  acrimoniously  and  reason  so 
badly  as  Sir  Alexander. 

To  establish  these  positions,  it  would  suffice  to  cite 
some  of  the  criticisms  of  the  London  Press. 

The  Telegraph  [September  26]  argumentatively 
demonstrates  the  palpable  fallacy  of  the  reasoning 
by  which  Sir  Alexander  endeavors  to  excuse  the  ad 
mitted  violation  of  law  and  the  want  of  due  dili 
gence  of  the  British  Government  in  the  case  of  the 
Florida,  especially  at  Nassau. 

The  News  [September  26]  condemns  and  regrets 
the  declaration  made  by  Sir  Alexander  in  his  "  Rea 
sons  "  twice,  where  he  speaks  of  himself  "  sitting  on 
the  Tribunal  as  in  some  sense  the  representative  of 
Great  Britain,"  and  contrasts  this  with  the  sounder 
view  of  his  duty  expressed  in  Parliament  by  Lord 
Cairns. 

Compare,  now,  this  observation  of  the  Neics  with 
certain  pertinent  remarks  of  the  Telegraph  [Septem 
ber  25].  Speaking  of  Mr.  Adams,  it  says :  "  He  put 
aside  the  temper  of  the*  advocate  when  he  took  his 


132         THE  TREATY  OF  WASHINGTON. 

seat  on  the  Bench,  and  he  performed  the  difficult  duty 
with  the  impartiality  of  a  jurist  and  the  delicate  honor 
of  a  gentleman"  And  this  well-merited  commenda 
tion  of  Mr.  Adams  is  prefatory  to  'the  exhibition  of 
Sir  Alexander  Cockburn  retaining  still  "  the  temper 
of  an  advocate  when  lie  took  his  seat  on  the  Bench," 
and  not  performing  his  duties  "with  the  impartiality 
of  a  jurist  and  the  delicate  honor  of  a  gentleman,"  but 
to  the  contrary,  as  shown  by  his  deportment  at  Gene 
va,  and  authenticated  under  his  own  hand  in  these 
"  Reasons." 

There  is  no  escape  from  the  dilemma :  it  was  hon-' 
orable  to  Mr.  Adams  to  act  as  a  "judge"  at  Geneva; 
and,  of  course,  to  act  as  a  mere  "  advocate  "  was  dis 
honorable  to  Sir  Alexander  Cockburn. 

And  thus  we  may  comprehend  at  a  glance,  what 
seems  so  remarkable  to  the  Telegraph  [September  26], 
that  when  we  pass  from  the  printed -opinions  of  the 
three  neutral  Arbitrators,  whose  "fairness"  nobody 
disputes,  and  from  those  of  the  impartial  "jurist" 
and  honorable  "  gentleman,"  Mr.  Charles  Francis  Ad 
ams,  to  the  "Reasons"  of  Sir  Alexander  Cockburn, 
"We  seem  to-  go  into  another  climate  of  opinion.  .  .  . 
We  find  different  premises,  a  different  bias,  a  differ 
ent  logic,  and  we  might  almost  say  different  facts." 
So  it  is,  indeed ;  and  the  explanation  is  obvious. 
The  "climate"  of  Count  Sclopis,  Baron  dTtajuba,  Mr. 
Stsempfli,  and  Mr.  Adams,  was  that. of  fairness,  judi 
cial  dignity,  impartiality,  gentlemanly  honor,  such  as 
belonged  to  their  place  as  Arbitrators :  the  "climate" 
of  Sir  Alexander  Cockburn  was  that  of  a  self-appoint- 


ALABAMA   CLAIMS.  133 

ed  "advocate,"  making  no  pretensions  to  "fairness"  or 
"impartiality,"  but,  with  the  "premises,"  "bias,"  "log 
ic,"  and  "facts"  of  such  an  advocate,  drawing  up  a 
passionate,  rhetorical  plea,  as  the  officious  "  represent 
ative  of  Great  Britain." 

As  such  "representative  of  Great  Britain,"  if  he  be 
not  promptly  disavowed  by  the  British  Government, 
it  will  be  found  that  his  "Reasons"  lay  down  many 
positions  which  may  somewhat  embarrass  present  or 
subsequent  Ministers. 

The  Neius  notices  numerous  contradictory  opinions 
or  conclusions  which  appear  in  the  "Reasons."  In 
one  place  Sir  Alexander  complains  that  any  Rules  are 
laid  down  by  the  Treaty,  and  in  another  place  ex 
presses  the  conviction  that  it  is  well  to  settle  such 
questions  by  Treaty  Rules.  "  He  complains  .  .  .  that 
the  Arbitrators  have  not  been  left  free  to  apply  the 
hitherto  received  principles  of  international  law,  and 
that  they  have;  that  rules  have  been  laid  down, 
and  that  they  have  not ;  that  definitions  have  been 
framed,  and  that  they  have  not  been  framed."  Here 
is  most  exquisite  confusion  of  ideas.  It  is  the  very 
same  extraordinary  and  characteristic  method  of 
thinking  and  writing  which  Mr.  Finlason  had  ex- 

o  o 

hibited  at  length,  and  which  Mr.  Gathorne  Hardy 
pointed  out  in  the  case  of  the  Queen  against  Xor- 
ton:  the  "inflammatory  statements," — the  "extra-ju 
dicial  denunciation,"  the  "extra-judicial  declamation," 
the  going  "from  one  side  to  another,"  and  the  say 
ing  "  it  is  "  and  "  it  is  not "  upon  every  point  of  law. 
The  perfect  similitude  of  these  repulsive  features  of 


13-J:  THE   TREATY  OF  WASHINGTON. 

the  "Charge"  and  the  "Reasons"  can  not  be  accident 
al  :  it  must  have  its  cause  in  idiosyncrasies  of  mental 
constitution. 

This  vacillation   or   contradictoriness   of  opinion, 
which  strikes  the  News  so  much,  pervades  the  "  Rea 


sons." 


Thus  Sir  Alexander  admits  want  of  due  diligence 
in  the  matter  of  the  Alabama,  and  yet  stoutly  denies 
that  the  United  States  had  any  good  cause  of  com 
plaint  against  Great  Britain.  He  insists  that  Minis 
ters  were  to  officiate  within  the  limits  of  municipal 
law,  and  yet  admits  that  such  is  not  the  law  of  na 
tions,  the  force  of  which  he  also  recognizes.  He  de 
nies  that  the  Ministers  can  lawfully  exercise  any  pre 
rogative  power  in  such  matters,  and  yet  justifies  and 
approves  the  exercise  of  it  [although  too  late]  in  the 
case  of  the  Shenandoah. 

The  News  also  calls  attention  to  Sir  Alexander's 
"  disaffection  to  the  conditions  under  which  he  dis 
charges  his  task,  a  task  voluntarily  accepted  with 
full  knowledge  of  those  conditions."  "  He  criticises 
adversely  the  Treaty  of  Washington :  .  .  .  these  criti 
cisms  seem  to  us  to  be  extra  vires.  A  derived  author 
ity  ought  surely  to  respect  its  source.  .  .  .  Other  con 
siderations  than  those  laid  down  for  him  have  certain 
ly  been,  present  to  the  mind  of  Sir  Alexander  Cock- 
burn,"  etc. 

There  is  manifest  justness  in  this  criticism.  What 
business  had  Sir  Alexander  to  indulge  in  continual 
crimination  of  the  Treaty  of  Washington,  while  act 
ing  as  Arbitrator  under  it,  and  possessing  no  pow- 


ALABAMA   CLAIMS.  135 

er  or  jurisdiction  except  such  as  the  Treaty  confers? 
To  do  so  was  indecent  in  itself,  and  could  have  no  ef 
fect  other  than  to  embarrass  the  British  Government. 
With  his  habitual  inconsistency  of  thought,  to  be 
sure,  he  advises  submission  to  the  judgment  of  the 
Arbitrators,  while  exhausting  himself  in  efforts  to 
shake  its  moral  strength  and  that  of  the  Treaty.  The 
Times  [September  28]  plainly  sees  that  the  "Rea 
sons"  of  Sir  Alexander  "will  be  duly  turned  to  ac 
count  by  Opposition  critics."  And  perhaps  that  was 
one  of  the  objects  Sir  Alexander  had  in  view,  in  thus 
usurping  the  function  to  judge  the  Treaty  under  the 
cover  of  acting  as  Arbitrator  to  judge  the  specific 
questions  submitted  by  the  Treaty. 

The  Times  admits  that  the  "  severity  of  the  criti 
cism  passed  by  the  Chief  Justice  on  the  United  States 
and  their  Agents,  and  even  on  his  colleagues,  may, 
from  a  diplomatic  point  of  view,  be  some  ground  for 
regret;"  .  .  .  that  "perhaps  he  was  too  ready  to  con 
sider  himself  the  representative  of  England;"  that 
"perhaps  he  takes  more  than  a  judicial  pleasure"  in 
one  argumentative  suggestion;  and  that  "he  dwells, 
perhaps,  with  something  too  much  of  the  delight  of 
an  advocate  "  on  some  other  point ;  and  in  each  one 
of  these  admissions,  qualified  as  they  are,  we  perceive 
recognition  of  the  fact  that,  in  his  "Reasons,"  Sir 
Alexander  does  not  speak  as  an  international  Arbi 
trator,  or  manifest  the  qualities  which  ought  to  char 
acterize  a  Chief  Justice. 

The  Neios  indicates  other  singular  traits  of  "  irrel 
evance  "  and  confusion  of  mind  in  the  "  Reasons." 


138  THE   TREATY  OF   WASHINGTON. 

Examination  of  the  substance  of  the  "Reasons'1 
leads  to  still  more  unfavorable  conclusions. 

While  the  Chief  Justice  exhausts  himself  in  fault 
finding  with  the  Counsel  of  the  United  States,  it  is 
observable  that  he  seldom,  if  ever,  grapples  with  their 
arguments,  but  shoots  off  instead  into  epithets  of  mere 
vituperation.  Indeed,  if  it  were  worth  while,  it  would 
be  easy  to  show  that  he  did  not  really  read  that  which 
he  so  intemperately  criticises.  And  when  he  under 
takes  to  deal  with  the  text,  it  is  only  in  the  disingen 
uous  manner  of  picking  out  here  and  there  a  detached 
paragraph  or  phrase  for  comment,  regardless  of  the 
context  or  the  general  line  of  argument. 

Nevertheless,  when  he  has  occasion  to  differ  in 
opinion  with  the  Counsel  of  the  United  States,  such 
is  the  perverted  state  of  passion  and  prejudice  in 
which  he  thinks  and  writes,  that  he  imputes  to  us  in 
tention  to  practice  on  the  "  supposed  credulity  and 
ignorance"  of  the  Tribunal. 

We  were  not  amenable  in  anywise  to  the  British 
Arbitrator ;  but,  if  we  had  been  barristers  in  his  own 
Court  of  whom  such  things  were  said  by  him,  it  would 
have  been  an  example  of  judicial  indecency  to  parallel 
which  it  would  be  necessary  to  go  back  to  the  days 
of  infamous  judges  like  Jeffreys  or  Scroggs. 

Let  Sir  Alexander  be  judged  by  his  own  rule. 
Cramming,  as  he  did  at  Geneva,  in  the  preparation  of 
his  "  Reasons,1'  he  examined  superficially  and  wrote 
precipitately :  in  consequence  of  which  he  copied 
from  the  Arguments  for  the  British  Government  pal 
pable  errors,  which  were  exposed  and  corrected  in 


ALABAMA  CLAIMS.  137 

the  Arguments  for  the  United  States.  Thus  it  is  that 
he  foils  into  the  mistake  of  asserting  a  false  construc 
tion  of  an  Act  of  Congress,  by  having  a  mutilated 
text  before  him,  quoting  a  part  of  a  sentence,  which 
may  or  may  not  justify  his  construction,  and  sup 
pressing  the  context  and  the  sequent  words  of  the 
same  sentence,  which  clearly  contradict  his  construc 
tion.  Acting  on  his  own  theoiy  of  blind  prejudice, 
we  should  be  compelled  to  assume  that  on  this  occa 
sion  he  perpetrates  a  deed  of  deliberate  bad  faith, 
with  intention  to  practice  on  the  "  supposed  credulity 
and  ignorance"  of  the  people  of  Great  Britain. 

Why  did  the  British  Arbitrator  put  together  such 
a  mass  of  angry,  irrelevant,  confused,  and  contradictA 
ory  declamation  against  the  American  Government,  J 
and  denunciation  of  its  Agent  and  Counsel  \  To  vin 
dicate  the  honor  of  British  statesmen,  Sir  Alexander 
declares,  in  a  speech  at  a  banquet  in  London  [Xovem- 
ber  4th],  against  unjust  charges  coming  from  the 
American  Government.  But  that  should  have  been 
done  by  speech  or  otherwise,  as  Sir  Alexander  Cock- 
burn  professedly,  and  in  England,  and  not  under  the 
false  pretense  of  an  Arbitrator  at  Geneva.  And  vil 
olent  denunciation  of  our  Case  or  Arguments  constiJ 
tutes  no  answer  to  our  charges.  And  in  such  vituper 
ation  of  the  American  Agent  and  Counsel,  Sir  Alexan 
der  not  only  throws  off  all  pretense  of  judicial  charac 
ter,  and  assumes  the  tone  of  a  mere  advocate,  but  he 
acts  the  part  of  an  advocate  in  temper  and  manner 
such  as  the  proper  Counsel  of  the  British  Govern 
ment  could  not  have  descended  to.  Indeed,  the 


133  THE   TREATY  OF  WASHINGTON. 

"  Reasons  "  proceed  from  beginning  to  end  on  the  hy 
pothesis  that  the  British  Agent  and  Counsel  had  neg 
lected  their  duty ;  that  neither  the  Case,  Counter-Case, 
nor  Argument  of  the  British  Government,  by  whom 
soever  prepared,  nor  the  several  supplementary  Argu 
ments  filed  by  Sir  Roundell  Palmer  in  his  own  name, 
contained  a  proper  exhibition  of  the  defenses  of  the 
British  Government ;  and  more  especially  that  Agent 
and  Counsel  alike  had  all  been  false  to  their  country's 
honor  in  not  vindicating  it  against  the  charges  of  the 
Americans.  In  view  of  this  dereliction  of  duty,  Sir 
Alexander  volunteers  to  supply,  more  suo,  the  place 
of  Counsel,  and  to  respond  to  the  American  Agent 
and  Counsel. 

Against  what  charges?  The  existence  of  an  un 
friendly  state  of  mind  toward  the  American  Govern 
ment  in  Parliament,  or  in  some  of  the  British  Colo 
nies  at  the  period  in  question?  Sir  Alexander  ad 
mits  the  fact  in  stronger  terms  than  we  had  charged 
it. — Failure  to  exercise  due  diligence  in  arresting  the 
equipment  of  Confederate  cruisers  to  depredate  on 
our  commerce?'  Sir  Alexander  admits  and  proves  it, 
under  three  heads,  as  to  the  Alabama,  and  only  es 
capes  the  same  admission  as  to  the  Florida  by  tech 
nicalities  as  unsatisfactory  to  impartial  minds  in  En 
gland  as  in  America. — As  the  London  Telegraph  says, 
in  another  relation,  Sir  Alexander,  whilst  indignantly 
protesting  against  our  accusation  of  British  officers, 
admits  their  failure  to  do  their  duty,  which  is  the 
foundation  of  the  accusation.  But  for  that  marvel 
ous  confusion  of  ideas  which  distinguishes  Sir  Alex- 


ALABAMA   CLAIMS.  139 

ander,  even  he  must  have  seen  that,  in  confessing  and 
proving  the  guilt  of  his  Government,  he  estops  him 
self  from  denying  the  justice  of  the  accusation  pre 
ferred  by  the  United  States. 

But  the  point  of  honor  was  considered  when  the 
Treaty  was  signed.  How  strangely  Sir  Alexander 
forgets  the  attitude  in  which  this  objection  stands  in 
Lord  Russell's  correspondence  with  Mr.  Adams.  If 
there  was  any  question  of  honor  in  the  controversy, 
that  it  was  which  forbade  a  treaty  of  arbitration,  as 
Lord  Russell  constantly  maintained.  But  three  suc 
cessive  Foreign  Ministries,  represented  by  Lord  Stan 
ley,  Lord  Clarendon,  and  Lord  Granville,  had  rightly 
decided  that  the  question  at  issue  did  not  involve  the 
honor  of  the  British  Government.  Sir  Alexander 
wastes  his  words  over  a  dead  issue,  utterly  buried  out 
of  sight  by  the  stipulations  of  the  Treaty  of  "Wash 
ington. 

Mr.  John  Lemoinne  expresses  the  judgment  of  Eu 
rope,  and  anticipates  that  of  history,  in  condemning 
Sir  Alexanders  "vehemence  of  polemic  and  bitter 
ness  of  discussion,  so  extraordinary  in  an  official  doc 
ument." 

Strangely  enough,  the  Saturday  Review,  which  pre 
tends  to  see  "  scurrility"  in  the  American  Case  and 
Argument,  where  it  does  not  exist,  is  blind  to  it  in 
the  "  Reasons,"  where  it  is  a  flagrant  fact. 

Meanwhile,  there  is  nothing  accusatory  of  Great 
Britain  in  the  American  Case, — there  is  nothing  of 
earnest  inculpation  of  the  British  Government  in  the 
American  Argument, — which  is  not  greatly  exceeded 


140         THE  TREATY  OF  WASHINGTON. 

by  extra-judicial  accusation  and  inculpation  of  tLe 
United  States  in  the  "  Reasons  "  of  Sir  Alexander. 

And  it  is  amusing  to  read  the  imputations  of  "  con 
fusion,"  "  vague  and  declamatory,"  "  ignorance  of  law 
and  history,"  which  he  applies  to  the  American  Coun 
sel,  in  view  of  what  his  own  countrymen  say  of  his 
own  methods  of  argumentation.  Indeed,  it  would 
seem  that  the  hard  words  of  Mr.  Finlason  and  others 
concerning  him  hid  made  such  effectual  lodgment  in 
his  brain  that,  whenever  he  writes,  they  rush  forth 
bap-hazard  to  be  applied  by  him  without  reason  or 
discrimination  to  any  occasional  object  of  argument 
or  controversy. 

If,  like  Mr.  Charles  Francis  Adams,  Sir  Alexander 
had  simply  prepared  brief  and  temperate  opinions  on 
all  the  questions,  whether  favorable  or  not  to  the 
United  States,  both  Governments  would  have  been 
left  in  an  amicable  mood.  As  it  is,  in  professedly 
throwing  off  the  character  of  a  judge, — which  alone 
belonged  to  him  of  right, — of  certain  specific  charges 
of  the  United  States  against  Great  Britain,  submitted 
to  him  by  the  Treaty  of  Washington, — and  in  under 
taking  to  become  the  mere  accuser  of  the  United 
States, — he  does  but  insult  the  American  Govern 
ment,  while  subjecting  his  own  Government  to  much 
present  inconvenience  and  great  future  embarrass 
ment. 

There  is  one  particular  feature  of  the  "Reasons" 
too  remarkable  to  be  overlooked. 

In  reading  these  "Reasons"  carefully,  one  can  not 
fail  to  be  struck  by  the  frequent  manifestation  of  the] 


ALABAMA  CLAIMS. 

disposition  of  Sir  Alexander  Cockburn  to  stop  and» 
turn  aside  in  order  to  criticise  Mr.  Stsempfli. 

Mr.  Staempfli,  in  conformity  with  the  vote  of  the 
Tribunal,  printed  his  provisional  opinions,  and  deliv 
ered  them  to  the  other  Arbitrators  from  time  to  time, 
and  to  the  respective  Agents  and  Counsel. 

Sir  Alexander  Cockburn  disingenuously  suppressed 
his  provisional  opinions  until  the  last  moment,  and 
then  filed  a  single  copy  only  of  the  mass  of  matter, 
general  and  special,  entitled  "Reasons,"  which  appears 
in  print  for  the  first  time  in  the  London  Gazette. 

Now,  in  the  provisional  opinions  of  Mr.  Stseinpfli, 
it  is  quite  possible  there  may  have  been  some  error 
of  statement.  Sir  Alexander  takes  pains  to  affirm  it. 
But,  if  there  be  any  such,  it  is  quite  immaterial,  and 
does  not  affect  any  important  conclusion  either  of  fact 
or  of  law. 

Sir  Alexander  also  committed  errors  of  this  class  in 
the  provisional  opinions  ivJiicli  lie  read.  Some  of 
them  were  noted  at  the  time,  and  are  still  remember 
ed.  These  errors  may  have  been  corrected  in  the 
print  which  we  now  have.  Indeed,  the  manuscript 
shows  numerous  corrections.  Nevertheless,  but  for 
the  suppression  of  Ids  provisional  opinions,  his  col 
leagues  might  have  interlarded  their  provisional  or 
revised  opinions  with  similar  captious  criticisms  of 
him.  It  is  presumable  that  they  did  not  think  it  be 
coming  or  fair  to  do  this ;  and  it  was  to  the  last  de 
gree  unfair  in  Sir  Alexander  to  do  it,  in  a  document 
foisted  into  the  record,  as  it  was,  at  the  instant  of  ad 
journment,  and  immediately  carried  off.  without  being 


14:2  .  THE  TREATY  OF  WASHINGTON. 

actually  filed  with  the  Secretary  or  otherwise  placed 
in  the  archives  of  the  Tribunal. 

Now,  in  the  early  pages  of  his  "  Keasons,"  he  im 
putes  to  Mr.  Staempfli  the  having  said  "that  there  is\ 
no  such  thing  as  international  law,  and  that  conse-/ 
quently  we  [the  Arbitrators]   are  to  proceed  inde 
pendently  of  any  such  law,"  and  "  according  to  some 
intuitive  perception  of  right  and  wrong  or  speculative 
notions,  etc." 

The  imputation  is  calumnious.  No  such  statement 
appears  in  any  of  the  printed  opinions  of  Mr.  Stsempfli; 
no  such  declaration  was  ever  made  by  him  orally  at 
any  of  the  Conferences.  The  declaration  of  Sir  Al 
exander  in  this  respect  is  but  a  sample  of  the  rash 
ness  and  inaccuracy  of  representation  which  pervade 
the  "  Keasons." 

What  Mr.  Stsempfli  says  on  the  general  subject  of 
"  international  law,"  in  so  far  as  regards  the  matters 
before  the  Tribunal,  is  as  follows : 

"  Principes  generaux  de  droit. 

"Dans  ses  considerants  juridiques,  le  Tribunal  doit  se  guider 
par  les  principes  suivants : — 

"  1.  En  premier  lieu,  par  les  trois  Regies  posees  dans  FArticle 
VI.  du  Traite,  lequel  porte  que, — et  cetera. 

"  D'apres  le  Traite  ces  trois  Regies  prevalent  sur  les  principes 
que  1'on  pourrait  deduire  du  droit  des  gens  historique  et  de  la 
science. 

"  2.  Le  droit  des  gens  historique,  ou  bien  la  pratique  du  droit 
des  gens,  ainsi  que  la  science  et  les  autorites  scientifiques, 
peuvent  etre  consideres  comme  droit  subsidiaire,  en  tant  que 
les  principes  a  appliquer  sont  generalement  reconnus  et  ne  sont 
point  snjets  i\  controverse,  ni  en  disaccord  avec  les  trois  Regies 


/  ** 

((UNIVERSIT 

ALABAMA   CLAIMS.        \    /y  1^3 

cidessus.     Si  Pane  ou  Pautre  de  ces  conditions  vie^fe^gamyg^, 
c'est  au  Tribunal  d'y  suppleer  en  interpretant  et  appliquant  les 
trois  Regies  de  son  mieux  et  en  toute  conscience." 

At  the  time  when  Sir  Alexander  sent  to  press  his 
misrepresentation  of  the  opinions  of  Mr.  Stenpfli,  he 
had  in  his  hands  the  authentic  statement  thereof 
as  printed  at  Geneva.  There  is  no  excuse,  therefore, 
for  this  malicious  and  dishonorable  endeavor  of  the 
British  Arbitrator  to  prejudice  the  character  of  the 
Swiss  Arbitrator  in  Great  Britain. 

Nevertheless,  Mr.  Staempfli,  according  to  Sir  Alex 
ander,  having  cut  adrift  from  all  positive  law,  adopts 
instead  "  speculative  notions,"  or  "  some  intuitive  per 
ception  of  right  and  wrong ;"  and  such  ideas  Sir  Al 
exander  repudiates :  or,  as  the  London  Telegraph  has 
it,  "  the  Chief  Justice,  armed  with  sarcasm  as  well  as 
logic,  runs  full  tilt  against  that  doctrine :"  to  wit,  the 
doctrine,  still  in  the  words  of  the  Telegraph,  "  that  the 
duties  which  nations  owe  to  each  other  must  be  de 
termined  by  the  light  of  intuitive  principles  of  jusA 
tice."  The  Telegraph  goes  on,  with  truth  and  reason,! 
to  say  that,  after  all,  Mr.  Stseinpfli  is  right,  if  he  insists, 
that  "  the  rules  of  fair  dealing,  which  we  term  inter-/ 
national  law,  are  not  law  in  the  same  sense  as  the  pos 
itive  edicts  of  the  common  law;  for  the  essence  of 
such  edicts  is  that  they  come  from  a  lawgiver  in  the 
form  of  a  parliament  or  a  sovereign :  the  rules  of  in 
ternational  justice  are  simply  the  code  which  experi 
ence  and  the  judgment  of  able  men  have  shown  to  be 
fair  or  expedient,  but  every  civilized  country  feels 
them  to  be  not  less  binding  on  that  account."  With- 


144  THE  TREATY   OF  WASHINGTON. 

out  pausing  to  consider  whether  these  observations 
are  perfectly  accurate  or  not  as  a  definition  of  the  law 
of  nations,  we  may  assume  that  they  are  substantially 
so,  and  suffice  at  any  rate  to  show  clearly  the  uncan- 
did  spirit  of  Sir  Alexander's  criticism  of  the  imputed 
language  of  Mr.  Stsempfli, — a  criticism  which  calls  to 
mind  a  similar  unjust  and  vicious  reproach  cast  by 
Junius  on  Lord  Mansfield. 

The  actual  statement  of  Mr.  Staempfli,  as  we  have 
seen,  was  unexceptionably  accurate  and  precise,  in  so 
far  as  regarded  the  matters  before  the  Tribunal. 

Meanwhile,  Mr.  Staempfli  may  have  said  orally,  what 
he  says  here  in  print,  that  in  many  supposable  cases 
of  deficient  explicitness  either  of  the  conventional 
rules  or  of  the  historic  law  of  nations,  "  c'est  au  Tri 
bunal  d'y  supple er  en  interpretant  et  appliquant  les 
trois  regies  de  son  mieux  et  en  toute  conscience." 

That  is  what  the  Viscount  of  Itajuba  says  in  one 
of  his  opinions,  namely,  that  a  certain  doctrine,  assert 
ed  by  the  British  Government,  "  froisse  la  conscience." 
It  is  what  Count  Sclopis  intends,  when  he  says,  "  Les 
nations  ont  entre  elles  un  droit  commun,  ou,  si  on  aime 
mieux,  un  lien  commun,  forme  par  Vequite  et  sanc- 
tionne  par  le  respect  des  interets  reciprocities;'1  and 
that  such  is  the  spirit  of  the  Treaty  of  Washington, 
"  qiri  ne  fait  que  donner  la  preference  aux  regies  de 
requite  generale  sur  les  dispositions  d'une  legislation 
particuliere  quelle  qu'elle  puisse  etre."  That  is  "  the 
universal  immutable  justice,"  which  in  all  systems  of 
law,  international  or  national,  distinguishes  right  from 
wrong,  and  to  which  the  United  States  appealed  in 


ALABAMA   CLAIMS.  145 

addressing  the  Tribunal  of  Arbitration.  And  it  is 
the  negation  of  all  these  great  principles  of  "justice," 
"  equity,"  or  "  conscience,"  which  pervades  the  "  Rea 
sons  "  of  Sir  Alexander  Cockburn :  in  reflecting  on 
which,  the  inind  irresistibly  reverts  to  that  same  line 
of  reasoning  which  astonished  the  world  in  his  par 
liamentary  advocacy  of  David  Pacifico. 

And  now,  who  is  injured  by  Sir  Alexander's  acri 
monious  arraignment  of  the  United  States  in  the  last 
hour  of  the  Arbitration?  It  does  not  successfully 
maintain  the  honor  of  the  British  Ministers;  for  it 
recognizes  their  failure  to  exercise  due  diligence, 
whether  tried  by  the  Treaty  Rules,  by  the  law  of  na 
tions,  or  by  the  Act  of  Parliament.  Does  it  influence 
the  action  of  the  Tribunal  ?  No :  that  was  consum 
mated  already.  Does  it  injure  the  American  Govern 
ment,  its  Agent  and  Counsel  ?  Xo :  so  far  as  regards 
us,  it  does  but  prove  that  the  American  Agent  and 
Counsel  have  done  their  duty  regardless  of  the  vin 
dictive  ill-will  of  the  British  Arbitrator,  and  that  the 
United  States  have  been  successful  to  such  a  degree 
as  to  throw  the  Chief  Justice  of  England  into  ecstasies 
of  spiteful  rage,  in  which  he  strikes  out  wildly  against 
friend  and  foe  alike,  but  chiefly  against  his  own  Gov- 
ernnient,  in  his  desultory  criticism  as  well  of  the 
Treaty  of  Washington  as  of  the  judgment  of  the  Tri 
bunal  of  Arbitration. 

For  the  British  Government,  we  know,  has  no  dis 
position  to  repudiate  the  Treaty,  and  it  accepts  th< 
Award  in  good  faith,  and  desires  that  it  should  be 
\    cepted  by  the  people  of  Great  Britain.     It  can  not  b< 

K 


146  THE   TREATY   OF  WASHINGTON. 

agreeable  to  the  British  Government  to  have  all  the 
old  debate  reopened  by  the  Chief  Justice, — to  have 
the  Treaty,  its  Rules,  the  Arbitration,  and  the  Award, 
made  by  him  the  subject  of  profuse  denunciation, — to 
have  an  arsenal  of  weapons,  good,  bad,  or  indifferent, 
collected  by  him  for  the  use  of  the  Opposition  in  Par 
liament. 

Nor  can  it  be  agreeable  to  see  the  Arbitrator  they 
had  appointed  demean  himself  so  fantastically,  and, 
as  the  English  Press  is  constrained  to  admit,  in  a 
manner  so  painfully  in  contrast  with  the  dignity  and 
judicial  impartiality  of  the  American  Arbitrator. 

The  Chancellor  of  the  Exchequer  [Mr.  Lowe]  gave 
utterance  to  these  sentiments  of  grief  and  regret  in  a 
speech  at  Glasgow  on  the  26th  of  September,  as  fol 
lows  : 

"I  conceive  our  duty  to  be  to  obey  the  Award,  and  to  pay 
whatever  is  assessed  against  us  without  cavil  or  comment  of 
any  kind.  [Cheers.]  I  am  happy  to  say  that  such  is  the  opin 
ion  of  my  learned  friend,  the  Lord  Chief  Justice.  But  I  must 
say,  with  the  greatest  submission  to  my  learned  friend,  that  I 
wish  his  practice  had  accorded  a  little  more  accurately  with 
his  theory.  He  has  advised  us  to  submit,  as  I  advise  you  to 
submit,  to  the  Award,  and  not  only  to  pay  the  money,  but  to 
forego  for  once  the  national  habit  of  grumbling — [laughter] — 
and  to  consider  that  wre  are  bound  in  honor  to  do  what  we  are 
told,  and  that,  having  once  put  the  thing  out  of  our  power  in 
the  honorable  and  the  high-minded  way  in  which  the  nation 
has  done,  the  only  way  in  which  w^e  should  treat  it  is  simply 
to  obey  the  Award,  and  to  abstain  from  any  comment  whatever 
as  to  what  the  Arbitrators  have  done.  [Cheers.]  But,  if  my 
learned  friend  the  Lord  Chief  Justice  thought  so,  I  can  only 
very  much  regret  that  he  did  not  take  the  course  of  simply 
signing  the  Award  with  the  other  Arbitrators,  it  being  perfectly 


ALABAMA  CLAIMS.  147 

well  known  that  he  differed  from  them  in  certain  respects,  which 
would  appear  by  the  transactions  of  the  Award.  I  think  it  is  a 
pity  when  the  thing  is  decided,  when  we  are  bound  to  act  upon 
it,  and  when  we  are  not  really  justified,  in  any  feeling  of  honor 
or  of  good  faith,  in  making  any  reclamation  or  quarrel  at  all 
with  what  has  been  done,  that  he  should  have  thought  it  his 
duty  to  stir  up  and  to  renew  all  the  strong  arguments  and  con 
tests  upon  which  these  Arbitrators  have  decided.  [Cheers.] 
I  think  if  it  was  his  opinion  that  we  ought  to  acquiesce  quietly 
and  without  murmur  in  the  Award,  he  had  better  not  have  pub 
lished  his  argument,  and,  if  he  thought  it  right  to  publish  his 
argument,  he  had  better  have  retrenched  his  advice  itself  as  to 
the  arbitration." 

Mr.  Lowe  can  not  help  seeing  that  the  "Reasons" 
are  not  an  opinion,  but  an  "  argument,"  and  an  "  argu 
ment"  adverse  to  the  conclusions  of  the  writer. 

Thus,  it  would  appear,  such  is  the  eccentric  mental 
constitution  of  the  Chief  Justice,  that  while  he  is  in 
capable  of  going  through  any  process  of  reasoning 
without  inconsistencies  and  self-contradictions  at  ev 
ery  step,  so  he  can  not  perform  an  act,  or  recommend 
its  performance,  without  at  the  same  time  setting 
forth  ample  reasons  to  forbid  its  performance. 

In  the  recent  debate  in  Parliament,  to  be  sure,  on 
the  Queen's  speech,  some  of  the  members  of  both 
Houses,  especially  of  those  in  Opposition,  speak  in 
terms  of  laudation  of  the  "  Reasons"  of  the  Chief  Jus 
tice.  Lord  Cairns,  on  this  occasion,  seems  to  have  for 
gotten  what  he  had  said,  on  a  previous  occasion,  of  the 
judicial  impartiality  to  be  expected  of  an  arbitrator. 
And  Mr.  Vernon  Harcourt,  in  defending  the  Chief 
Justice  against  what  the  Chancellor  of  the  Exchequer 
had  said  of  him  at  Glasgow,  unconsciously  falls  into 


148  THE  TREATY  OF  WASHINGTON. 

the  error  of  characterizing  him  as  "  the  representative 
of  the  Crown,  sent  forth  to  discharge  his  duty  to  his 
Sovereign  and  maintain  the  honor  of  his  country :" 
which  affords  to  Mr.  Lowe  opportunity  of  responding 
triumphantly  as  follows : 

"  I  have  not  spoken  of  the  Lord  Chief  Justice  in  the  lan 
guage  in  which  the  honorable  and  learned  gentleman  has 
spoken  of  him,  and  which  filled  me  with  unbounded  astonish 
ment.  The  Lord  Chief  Justice  was  sent  to  Geneva  as  an  Ar 
bitrator,  to  act  impartially,  and  not  to  allow  himself  to  be 
biased  by  the  fact  of  his  being  an  Englishman,  but  to  give  his 
judgment  on  what  he  thought  to  be  the  merits  of  the  case. 
That  is  my  belief  with  regard  to  the  Lord  Chief  Justice,  with 
regard  to  whom  I  am  arraigned  by  the  honorable  and  learned 
gentleman  as  having  treated  him  disrespectfully.  But  how 
does  the  honorable  and  learned  gentleman  himself  speak  of  the 
Lord  Chief  Justice?  He  says  that  learned  Judge  was  a  plen 
ipotentiary, — that  is  to  say,  that  he  went  to  Geneva  to  do  the 
work  of  England,  and  not  to  decide  between  two  parties  im 
partially,  but  to  be  biased  in  his  course,  and  to  go  all  lengths 
for  England.  The  conduct  of  the  Lord  Chief  Justice  negatives 
such  a  statement,  because  in  some  respects  the  learned  lord 
went  against  us.  Then  the  honorable  and  learned  gentleman 
said  that  the  Lord  Chief  Justice  was  sent  to  Geneva  to  defend 
the  honor  of  this  country*  but  the  fact  is  that  lie  was  sent  to  ar 
bitrate,  and  Sir  Roundell  Palmer  and  others  mere  sent  to  defend 
the  honor  of  the  country.  It  would  be  a  libel  on  the  HLord  Chief 
Justice  to  insinuate  that  he  would  undertake  the  office  of  going 
to  Geneva-  nominally  in  the  character  of 'Arbitrator ',  but  really 
to  act  as  an  advocate  and  plenipotentiary  for  this  country." 

It  is  difficult  to  judge  how  much  of  what  Mr.  Lowe 
said  on  this  occasion  was  intended  as  sincere  defense 
of  the  Chief  Justice,  and  how  much  was  mere  sarcasm. 
But  this  uncertainty  is  due  to  the  ambiguous  and  | 
equivocal  conduct  of  the  Chief  Justice  himself,  and  ' 


AL ABASIA  CLAIMS.  149 

to  his  own  declaration  that,  while  engaged  in  writ 
ing  an  extra-judicial  pamphlet,  under  the  false  pre 
tense  of  its  being  the  act  of  an  Arbitrator,  he  was 
really  speaking  as  the  Representative  of  Great  Brit 
ain.     That  was  the  mistake  of  the  Chief  Justice.     It 
was  competent  for  him,  after  running  away  from  the 
Tribunal  as  he  did,  to  publish  in  England  the  con-jj 
tents  of  the  first  part  of  the  "Reasons"  as  a  personal]! 
act.     It  was  dishonorable  in  him  to  smuggle  it  inter 
the  archives  of  the  Tribunal,  and  to  publish  it  in  the 
London  Gazette  as  the  official  act  of  an  Arbitrator. 

In  view  of  all  these  incidents,  and  of  the  extraordi 
nary  contrast  between  the  conduct  of  Mr.  Adams  and 
Sir  Alexander  Cockburn,  as  admitted  by  Englishmen 
themselves,  it  is  easy  to  comprehend  that,  while  the 
former  has  been  honored  with  the  express  official 
commendation  of  l)otli  Governments,  the  latter,  by 
wantonly  insulting  his  fellow  -  Arbitrators  and  the 
United  States,  has,  while  receiving  partisan  praise  in  ' 
Parliament,  rendered  it  difficult,  if  not  impossible,  for 
him  to  receive  the  hearty  approval  even  of  his  own 
Government. 

OPDsIOXS  OF  THE  OTHER  ARBITRATORS. 

The  other  Arbitrators  also  placed  on  record  their 
separate  opinions  as  finally  corrected,  all  which  de 
serve  notice.  Each  of  these  opinions  consists  of  an 
affirmative  exposition  of  the  views  of  the  Arbitrator 
who  speaks.  Count  Sclopis,  Mr.  Staempfli,  the  Vicomte 
dTtajuba,  and  Mr.  Adams,  each  of  them  states  his  con 
clusions  founded  on  the  documents  and  arguments  be- 


150  THE  TREATY  OF  WASHINGTON. 

fore  the  Tribunal.  Neither  of  them  seems  to  have 
imagined  that  the  cause  of  truth  or  of  justice  would 
have  been  promoted  by  going  outside  of  the  docu 
ments  and  arguments  submitted,  in  order  to  criticise 
or  cavil  at  the  opinions  of  the  British  Arbitrator. 

We  begin  with  Mr.  Adams.  His  opinions  are  of 
gome  length;  and,  although  containing  correct  state 
ments  of  local  law  where  such  statements  were  mate 
rial,  yet  deserve  to  be  regarded  in  the  better  light  of 
diplomacy  and  of  international  jurisprudence.  He 
does  not  descend  from  the  Bench  into  the  arena  of  the 
Bar.  If  he  had  seen  fit  to  do  this,  he  might  have  dis 
covered  quite  as  much  inducement  to  acrimony  and 
acerbity  of  discussion  in  the  wanton  accusations  of 
the  entire  political  life  of  the  United  States,  which 
the  British  Case,  Counter-Case,  and  Argument  con 
tain,  as  Sir  Alexander  did  in  any  thing  which  the 
Cases  and  Argument  of  the  United  States  contained. 
But  he  yielded  to  no  such  temptation.  "He  put 
aside  the  temper  of  the  advocate,"  as  the  Telegraph 
truly  says,  to  speak  "  with  the  impartiality  of  a  jurist 
and  the  delicate  honor  of  a  gentleman."  Accordingly, 
his  opinions  are  withoutfblemish  either  in  temper  or 
in  language.  He  finds  \vant  of  due  diligence  in  the 
matter  of  the  Alabama:  and  so  did  the  British  Ar 
bitrator.  He  finds  extraordinary  disregard  of  law  in 
the  matter  of  the  Florida:  and  so  did  the  British 
Arbitrator.  He  finds  a  series  of  acts  of  scandalous 
wrong  perpetrated  by  officers  of  the  British  Govern 
ment  in  both  these  cases:  and  so  did  the  British  Ar 
bitrator.  He  can  not,  as  the  British  Arbitrator  does, 


ALABAMA  CLAIMS.  151 

find  justification  for  the  acts  of  negligence  of  British 
Colonial  authorities  in  the  matter  of  the  Shenandoali 
or  that  of  the  Retribution.  And,  as  might  have  been 
anticipated,  his  conception  of  the  duties  of  a  State 
suppose  a  higher  standard  of  national  morality  than 
that  recognized  by  the  British  Arbitrator. 

Mr.  Staeinpflrs  opinions  are  also  of  considerable 
length,  but  differ  from  those  of  Mr.  Adams,  especially 
in  the  form,  which  is  that  customary  among  the  jurists 
of  the  Continent.  He  also,  while  confining  himself  to 
the  most  rigorous  deductions  of  international  law,  in 
discussing  the  acts  of  the  inculpated  Confederate  cruis 
ers,  yet  writes  like  a  statesman,  habituated  to  breathe 
the  air  of  that  "climate"  of  "the  impartiality  of  a 
jurist  and  the  delicate  honor  of  a  gentleman"  which 
was  not  the  "  climate"  of  the  British  Arbitrator. 

The  opinions  of  the  Yiconite  d'ltajuba  are  very 
brief,  but  in  the  same  form  of  analysis  as  the  opinions 
of  Mr.  Staempfli.  It  is  to  be  noted,  however,  that,  be 
yond  stating  his  reasoning  and  conclusion  as  to  each 
of  the  inculpated  cruisers,  he  speaks  of  only  one  of  the 
special  questions  argued,  namely,  that  of  the  effect  to 
be  given  in  British  ports  to  the  Confederate  cruisers 
exhibiting  commissions.  As  to  this  point  he  con 
cludes  as  follows : 


"La  commission  dont  un  tel  navire  est  pourvu,  ne  suffit  pas 
pour  le  couvrir  vis-a-vis  du  neutre  dont-il  a  viole  la  neutralite. 
Et  comment  le  belligerant  se  plaindrait-ii  de  1'application  de 
ce  principe  ?  En  saisissant  on  detenant  le  navire,  le  neutre  ne 
fait  qu'empecher  le  belligerant  de  tirer  profit  de  la  fraude  com- 
mise  sur  son  territoire  par  ce  meme  belligerant ;  tandis  que, 
en  ne  procedant  point  contre  le  navire  coupable,  le  neutre 


152  THE   TREATY   OF  WASHINGTON. 

s'expose  justement  a  ce   que   1'autre  belligerant  suspecte  fa 
bonne  foi" 

In  these  observations,  we  see  that  the  Vicomte 
d'ltajuba  appeals  to  the  same  "intuitive  perceptions 
of  right"  which  are  so  unpalatable  to  the  British  Ar 
bitrator. 

The  Vicomte  d'ltajuba  does  not  give  us  any  opin 
ion  on  the  subject  of  "  due  diligence  generally  consid 
ered  :"  which  tends  to  prove  that  his  call  for  argument 
on  that  point  was  not  induced  by  any  need  on  his 
part  for  elucidation  of  Counsel. 

The  opinions  of  Count  Sclopis, — not  only  those  in 
which  he  judges  the  particular  cases,  but  especially 
those  in  which  he  discusses  the  questions  of  public 
law,  as  to  which  mere  opinion  was  drawrn  from  the  Ar 
bitrators,  virtually  at  the  instance  of  Great  Britain, — 
are  instructive  and  interesting  disquisitions,  of  per 
manent  value  as  the  views  of  an  erudite  legist  and  a 
practiced  statesman.  The  paper  on  due  diligence  is 
remarkable  for  its  profound  and  comprehensive  view 
of  that  subject  in  its  higher  relation  to  the  acts  of 
sovereign  States.  In  this  paper,  he  thoroughly  exposes 
the  fallacy  of  the  argument  of  Sir  Roundell  Palmer, 
which  would  lower  the  generality  and  the  greatness 
of  the  Treaty  Rules  to  the  level  of  the  municipal  law 
of  Great  Britain. 

And  now,  having  reviewed  the  stipulations  of  the 
Treaty  in  this  respect,  the  debates  attending  it  both 
before  and  after  its  conclusion,  the  proceedings  of  the 
Tribunal  of  Arbitration,  and  the  separate  opinions  of 
the  Arbitrators,  we  come  to  the  consideration  of  what 


ALABAMA  CLAIMS.  153 

they  actually  decided,  the  immediate  effect  of  the  De 
cision,  and  the  general  relation  thereof  to  Great  Brit 
ain,  to  the  United  States,  and  to  the  other  Govern 
ments  of  Europe  and  America. 

KEYIEW  OF  THE  DECISION  OF  THE  TRIBUNAL  OX  NATIONAL 

LOSSES. 

To  begin,  let  us  see  what  was  the  true  thought  of 
the  Tribunal  regarding  the  class  of  claims,  as  to  which 
the  British  Government  displayed  so  much  superflu 
ous  emotion  subsequently  to  the  publication  of  the 
American  Case,  and  which  the  Tribunal  passed  upon, 
in  effect,  without  previous  decision  whether  they  were 
or  were  not  embraced  in  the  Treaty. 

I  have  already  called  attention  to  the  fact  that  no 
consideration  of  direct  or  indirect,  immediate  or  conse 
quential,  appears  in  that  opinion  of  the  Tribunal. 
The  Arbitrators  express  a  conclusion,  not  the  reasons 
of  the  conclusion.  We  might,  it 'Is  true,  easily  infer 
those  reasons  from  the  language  in  which  the  conclu 
sion  is  expressed.  That  language  excludes  all  such 
trivial  questions  as  whether  "  direct "  or  "  indirect," 
and  invokes  us  to  seek  for  the  unexpressed  reasons  in 
some  higher  order  of  ideas.  Meanwhile  we  have,  at 
length,  in  the  final  "  Decision,"  means  of  ascertaining 
the  whole  thought  of  the  Tribunal. 

The  Arbitrators  had  to  pass  on  a  claim  of  indemni 
ty  for  the  costs  of  pursuit  of  Confederate  cruisers  by 
the  Government : — a  claim  admitted  to  be  within  the 
jurisdiction  of  the  Tribunal,  and  which  the  Tribunal 
•rejects  on  the  ground  that  such  costs  "are  not,  in  the 


154  THE  TREATY  OF  WASHINGTON. 

judgment  of  the  Tribunal,  properly  distinguishable 
from  the  general  expenses  of  the  war  carried  on  by 
the  United  States." 

Here,  the  major  premise  is  assumed  as  already  de 
termined  or  admitted,  namely,  that  "  the  general  ex 
penses  of  the  war"  are  not  to  be  made  the  subject  of 
award.  Why  not?  Because  such  expenses  are  in 
the  nature  of  indirect  losses  ?  No  such  notion  is  in 
timated.  Because  the  claim,  as  being  for  indirect 
losses,  is  not  within  the  purview  of  the  Treaty  ?  That 
is  not  said  or  implied.  Because  such  a  claim  is  be 
yond  the  jurisdiction  of  the  Tribunal?  No:  for  the 
Tribunal  takes  jurisdiction  and  judges  in  fact.  The 
question  then  remains, — why  is  a  claim  for  losses 
pertaining  to  the  general  expenses  of  the  war  to  be 
rejected  ? 

There  can  be  no  mistake  as  to  the  true  answer.  It 
is  to  be  found  in  the  preliminary  opinion  expressed 
by  the  Arbitrators. 

The  Tribunal,  in  that  opinion,  says  that  the  contro 
verted  [the  so-called  indirect]  claims  "  do  not  consti 
tute,  upon  the  principles  of  international  law  applica 
ble  to  such  cases,  good  foundation  for  an  award  of 
compensation  or  computation  of  damages  between  na 
tions."  Why  does  not  the  injury  done  to  a  nation  by 
the  destruction  of  its  commerce,  and  by  the  augmenta 
tion  of  the  duration  and  expenses  of  war,  constitute  "  a 
good  foundation  for  an  award  of  compensation  or  com 
putation  of  damages  between  nations  ?"  The  answer 
is  that  such  subjects  of  reclamation  are  "  not  properly 
distinguishable  from  the  general  expenses  of  war."  __L 


ALABAMA   CLAIMS.  155 

Let  us  analyze  these  two  separate  but  related 
opinions,  and  thus  make  clear  the  intention  of  the 
Tribunal.  It  is  this : 

The  injuries  done  to  a  Belligerent  by  the  failure  o 
a  Neutral  to  exercise  due  diligence  for  the  prevention 
of  belligerent  equipments  in  its  ports,  or  the  issue 
hostile  expeditions  therefrom,  in  so  far  as  they  are  in 
juries  done  to  the  Belligerent  in  its  political  capacity 
as  a  nation,  and  resolving  themselves  into  an  element 
of  the  national  charges  of  war  sustained  by  the  Bel 
ligerent  in  its  political  capacity  as  a  nation,  do  not,' 
"  upon  the  principles  of  international  law  applicable 
to  such  cases"  [excluding,  that  is,  the  three  Rules], 
constitute  "  good  foundation  for  an  award  of  compen 
sation  or  computation  of  damages  between  nations."  i 

Such,  in  my  opinion,  is  the  thought  of  the  Arbitral 
tors,  partially  expressed  in  one  place  as  to  certain 
claims  of  which  they  did  not  take  jurisdiction,  and 
partially  in  another  place  as  to  others  of  which  they 
did  take  jurisdiction, — the  two  partial  statements  be 
ing  complementary  one  of  the  other,  and  forming  to 
gether  a  perfectly  intelligible  and  complete  judgment 
as  to  the  whole  matter. 

The  direct  effect  of  the  judgment  as  between  the 
United  States  and  Great  Britain,  is  to  prevent  either 
Government,  when  a  Belligerent,  from  claiming  of  the 
other,  when  a  Neutral,  "  an  award  of  compensation  or 
computation  of  damages"  for  any  losses  or  additional 
charges  or  "  general  expenses  of  war,"  which  such  Bel 
ligerent,  in  its  political  capacity  as  a  nation,  may  suf 
fer  by  reason  of  the  want  of  due  diligence  for  the 


156  THE   TREATY  OF  WASHINGTON. 

prevention  of  violation  of  neutrality  in  the  ports  of 
such  Neutral.  That  is  to  say,  the  parties  to  the 
Treaty  of  Washington  are  estopped  from  claiming 
compensation,  one  of  the  other,  on  account  of  the  na 
tional  injuries  occasioned  by  any  such  breaches  of 
neutrality,  not  because  they  are  indirect  losses, — for 
they  are  not, — but  because  they  are  national  losses, 
losses  of  the  State  as  such.  And  each  of  us  may,  in 
controversies  on  the  same  point  with  other  nations, 
allege  the  moral  authority  of  the  Tribunal  of  Geneva, 

But,  while  national  losses  incurred  by  the  Bellig-^ 
erent  as  a  State  in  consequence  of  such  breaches  of 
neutrality  are  not  to  be  made  the  subject  of  "  com 
pensation  or  computation  of  damages,"  all  private  or 
individual  losses  may  be,  under  the  qualifications  and 
limitations  as  to  character  and  amount  found  by  the 
Tribunal,  and  which  will  be  explained  in  treating  of 
that  part  of  the  Decision. 

These  conclusions  are  the  inevitable  result  of  care 
ful  comparison  of  the  several  claims  with,  the  several 
decisions.  True  it  is,  the  national  claims  of  indem 
nity  for  the  cost  of  the  pursuit  of  the  Confederate 
cruisers  happened  to  come  before  the  Tribunal  asso 
ciated  with  strictly  private  claims,  and  the  strictly 
private  claims  on  account  of  payment  of  extra  war 
premiums  associated  with  national  claims ;  but  these 
are  perfectly  immaterial  incidents,  which  do  not  in 
any  way  affect  appreciation  of  the  opinions  of  the 
Tribunal. 

Another  subject  of  reflection  suggests  itself,  in 
comparing  the  respective  decisions  on  national  and 


ALABAMA  CLAIMS.  157 

on  private  losses,  produced  by  the  failure  of  a  Neu 
tral  to  maintain  neutrality. 

We  asserted  the  responsibility  of  Great  Britain 
for  the  acts  of  such  of  the  Confederate  cruisers  as 
came  within  either  of  the  three  Rules,  just  as  if  those 
cruisers  had  been  fitted  out  or  supplied  by  the  Brit 
ish  Government,  to  the  extent  at  least  of  the  prizes 
of  private  property  which  those  cruisers  made.  That 
was  the  theory  of  imputed  responsibility.  Any  cruis 
er  enabled  to  make  prizes  by  the  fault  of  the  Brit 
ish  Government  was  to  be  regarded  as  pro  tanto  a 
British  cruiser,  and  Great  Britain,  in  the  words  of 
the  British  Counter-Case,  "  treated  [in  that  respect] 
as  a  virtual  participant  in  the  war."  The  Tribuna" 
seems  to  have  so  held;  that  is,  in  regard  to  the  loss 
of  individual  citizens  of  the  United  States. 

Moreover,  it  was  argued  on  both  sides,  as  by  com 
mon  consent,  that  the  question  between  the  two 
Governments  was  one  of  war,  commuted  for  indem 
nity. 

"Her  [Great  Britain's]  acts  of  actual  or  constructive  com-j 
plicity  with  the  Confederates,"  says  the  American  Argument,' 
"  gave  to  the  United  States  the  same  right  of  war  against  her, 
as  in  similar  circumstances  she  asserted  against  the  Xether-| 
lands.  .,. 

"We,  the  United  States,  holding  those  rights  of  war,  hare 
relinquished  them  to  accept  instead  the  Arbitration  of  this 
Tribunal.  And  the  Arbitration  substitutes  correlative  legal 
damages  in  the  place  of  the  right  of  war." 

This  position  is  clearly  stated  in  the  British  Coun 
ter-Case  as  follows : 

"Her  Majesty's  Government  readily  admits  the  general 


158  ™E  TREATY  OF  WASHINGTON. 

"  principle  that,  where  an  injury  has  been  done  by  one  nation 
"  to  another,  a  claim  for  some  appropriate  redress  arises,  and 
"  that  it  is  on  all  accounts  desirable  that  this  right,  should  be 
u  satisfied  by  amicable  reparation  instead  of  being  enforced  by 
"  war.  All  civil  society  reposes  on  this  principle,  or  on  a  prin- 
"  ciple. analogous  to  this ;  the  society  of  nations,  as  well  as  that 
"  which  unites  the  individual  members  of  each  particular  com- 
il  monwealth." 

Now  the  capture  of  private  property  on  the  seas/ 
it  can  not  be  denied,  is  one  of  the  methods  of  public 
war.  Whether  such  capture  be  made  by  letters  of 
marque,  or  by  regular  men-of-war,  is  immaterial ;  in 
either  form  it  increases  the  resources  of  one  Belliger 
ent  and  it  weakens  those  of  the  other;  and  if  the 
Neutral  fits  out  [or,  in  violation  of  neutral  duty,  suf 
fers  to  be  fitted  out  in  its  ports,  which  is  the  same 
thing]  cruisers  in  aid  of  one  of  the  Belligerents,  such 
Neutral  becomes  a  virtual  participant  in  the  war,  not 
only  prolonging  it  and  augmenting  its  expenses,  but 
perhaps  producing  decisive  effects  adverse  to  the 
other  Belligerent.  These  are  the  national  losses,  or, 
as  the  British  Government  insists,  the  indirect  losses, 
inflicted  by  neglect  or  omission  to  discharge  the  ob 
ligations  of  neutrality. 

In  deciding  that  such  losses, — that,  in  general, 
the  national  charges  of  war, — can  not  by  the  law  of 
nations  be  regarded  as  "good  foundation  for  an 
award  of  compensation  or  computation  of  damages 
between  nations,"  the' Tribunal  in  effect  relegated 
that  question  to  the  unexplored  field  of  the  discre 
tion  of  sovereign  States. 

Claims  of  indemnity  for  the  national  losses  grow- 


ALABAMA  CLAIMS.  159 

ing  out  of  a  state  of  war  being  thus  disposed  of,  we 
arrive  at  the  great  class  of  private  losses,  w hich  chief 
ly  occupied  the  time  of  the  Tribunal. 

DECISION   AS   TO  PRIVATE  LOSSES. 

The  Arbitrators,  assuming  that,  pursuant  to  the 
command  of  the  Treaty,  they  are  to  be  governed  by 
the  three  Rules,  and  the  principles  of  international 
law  not  incompatible  therewith,  proceed  to  lay  down 
the  following  prefatory  positions,  namely : 

1.  "The  'due  diligence'  referred  to  in  the  first  and  third  of 
the  said  Rules,  ought  to  be  exercised  by  neutral  Governments 
in  exact  proportion  to  the  risks  to  which  either  of  the  Belliger 
ents  may  be  exposed  from  a  failure  to  fulfill  the  obligations  of 
neutrality  on  their  part. 

2. "  The  circumstances,  out  of  which  the  facts  constituting  the 
subject-matter  of  the  present  controversy  arose,  were  of  a  na 
ture  to  call  for  the  exercise  on  the  part  of  Her  Britannic  Maj 
esty's  Government  of  all  possible  solicitude  for  the  observance 
of  the  rights  and  the  duties  involved  in  the  proclamation  of 
neutrality  issued  by  Her  Majesty  on  the  13th  day  of  May,  1861. 

3.  "  The  effects  of  a  violation  of  neutrality  committed  by 
means  of  the  construction,  equipment,  and  armament  of  a  ves 
sel  are  not  done  away  with  by  any  commission  which  the  Gov 
ernment  of  the  belligerent  Power  benefited  by  the  violation  of 
neutrality  may  afterward  have  granted  to  that  vessel;  and  the 
ultimate  step,  by  which  the  offense  is  completed,  can  not  be 

'admissible  as  a  ground  for  the  absolution  of  the  offender;  nor 
can  the  consummation  of  his  fraud  become  the  means  of  estab 
lishing  his  innocence. 

4.  "The  privilege  of  ex-territoriality  accorded  to  vessels  of 
war  has  been  admitted  into  the  laws  of  nations,  not  as  an  ab 
solute  right,  but  solely  as  a  proceeding  founded  on  the  princi 
ple  of  courtesy  and  mutual  deference  between  different  na 
tions,  and  therefore  can  never  be  appealed  to  for  the  protec 
tion  of  acts  done  in  violation  of  neutrality. 


160  THE  TREATY  OF  WASHINGTON. 

5.  "  The  absence  of  a  previous  notice  can  not  be  regarded  as 
a  failure  in  any  consideration  required  by  the  law  of  nations, 
in  those  cases  in  which  a  vessel  carries  with  it  its  own  con 
demnation. 

6.  "In  order  to  impart  to  any  supplies  of  coal  a  character 
inconsistent  with  the  second  Rule,  prohibiting  the  use  of  neu 
tral  ports  or  waters,  as  a  base  of  naval  operations  for  the  Bel 
ligerent,  it  is  necessary  that  the  said  Supplies  should  be  con 
nected  with  special  circumstances  of  time,  of  persons,  or  of 
place,  which  may  combine  to  give  them  such  character." 

Keeping  in  view  these  rules  of  construction,  the 
Tribunal  proceeds  to  judge  the  British  Government 
in  regard  to  each  of  the  Confederate  cruisers  before 
them. 

As  to  the  Alabama,  originally  "No.  290,"  construct 
ed  in  the  port  of  Liverpool  and  armed  near  Terceira, 
through  the  agency  of  the  Agrippina  and  Bahama, 
dispatched  from  Great  Britain  to  that  end,  the  Tri 
bunal  decides  that  the  British  Government  failed  to 
use  due  diligence  in  the  performance  of  its  neutral 
obligations : 

1.  Because  "it  omitted,  notwithstanding  the  warnings  and 
official  representations  made  by  the  diplomatic  agents  of  the 
United  States  during  the  construction  of  the  said  *  No.  290,'  to 
take  in  due  time  any  effective  measures  of  prevention,  and  that 
those  orders  which  it  did  give  at  last,  for  the  detention  of  the 
vessel,  were  issued  so  late  that  their  execution  was  not  prac-* 
ticable ;"  2.  Because, "  after  the  escape  of  that  vessel,  the  meas 
ures  taken  for  its  pursuit  and  arrest  were  so  imperfect  as  to 
lead  to  no  result,  and  therefore  can  not  be  considered  sufficient 
to  release  Great  Britain  from  the  responsibility  already  in 
curred  ;"  3.  Because,  "  in  despite  of  the  violations  of  the  neu 
trality  of  Great  Britain  committed  by  the  *  290,'  this  same  ves 
sel,  later  known  as  the  Confederate  cruiser  Alabama,  was  on 
several  occasions  freely  admitted  into  the  ports  of  Colonies  of 


ALABAMA  CLAIMS.  161 

Great  Britain,  instead  of  being  proceeded  against,  as  it  ought  to 
have  been,  in  any  and  every  port  within  British  jurisdiction 
in  which  it  might  have  been  found ;"  4.  And  because  "  the 
Government  of  her  Britannic  Majesty  can  not  justify  itself  for 
a  failure  in  due  diligence  on  the  plea  of  the  insufficiency  of  the 
legal  means  of  action  which  it  possessed." 

As  to  the  Florida,  originally  called  Oreto,  the  Tri 
bunal  decides  that  the  British  Government  failed  to 
use  due  diligence  to  fulfill  its  duties : 

1.  Because  "it  results  from  all  the  facts  relative  to  the  con 
struction  of  the  Oreto  in  the  port  of  Liverpool,  and  to  its  issue 
therefrom,  which  facts  failed  to  induce  the  Authorities  in  Great 
Britain  to  resort  to  measures  adequate  to  prevent  the  violation 
of  the  neutrality  of  that  nation,  notwithstanding  the  warnings 
and  repeated  representations  of  the  Agents  of  the  United 
States;"  2.  Because  "it  likewise  results  from  all  the  facts  rela 
tive  to  the  stay  of  the  Oreto  at  Nassau,  to  her  issue  from  that 
port,  to  her  enlistment  of  men,  to  her  supplies,  and  to  her  arma 
ment  with  the  co-operation  of  the  British  vessel  Prince  Alfred 
at  Green  Cay,  that  there  was  negligence  on  the  part  of  the 
British  Colonial  Authorities  ;"  3.  Because,  "  notwithstanding 
the  violation  of  the  neutrality  of  Great  Britain  committed  by 
the  Oreto,  this  same  vessel,  later  known  as  the  Confederate 
cruiser  Florida,  was  nevertheless  on  several  occasions  freely 
admitted  into  the  ports  of  British  Colonies ;"  and,  4.  Because 
"  the  judicial  acquittal  of  the  Oreto  at  Xassau  can  not  relieve 
Great  Britain  from  the  responsibility  incurred  by  her  under  the 
principles  of  international  law;  nor  can  the  fact  of  the  entry 
of  the  Florida  into  the  Confederate  port  of  Mobile,  and  of  its 
stay  there  .during  four  months,  extinguish  the  responsibility 
previous  to  that  time  incurred  by  Great  Britain." 

As  to  the  ShenandoaJi,  originally  called  the  Sea 
King,  the  Tribunal  decides  that  the  British  Govern 
ment  is  not  chargeable  with  any  failure  in  the  use  of 
due  diligence  to  fulfill  the  duties  of  neutrality  respect- 

L 


162  THE   TREATY   OF  WASHINGTON. 

ing  her  during  the  period  of  time  anterior  to  her  en 
try  into  the  port  of  Melbourne :  but— 

"  That  Great  Britain  has  failed,  by  omission,  to  fulfill  the  du 
ties  prescribed  by  the  second  and  third  of  the  Rules  aforesaid, 
in  the  case  of  this  same  vessel,  from  and  after  her  entry  into 
Hobson's  Bay,  and  is  therefore  responsible  for  all  acts  commit 
ted  by  that  vessel  after  her  departure  from  Melbourne,  on  the 
18th  day  of  February,  1865." 

The  Tribunal  further  decides  as  to  the  Tuscaloosa, 
tender  to  the  Alabama,  and  as  to  the  Clarence,  the 
Tacony,  and  the  Archer,  tenders  to  the  Florida : 

"That  such  tenders  or  auxiliary  vessels  being  properly  re 
garded  as  accessories,  must  necessarily  follow  the  lot  of  their 
principals,  and  be  submitted  to  the  same  decision  which  ap 
plies  to  them  respectively." 

As  to  the  other  vessels  accused,  namely,  the  Retri 
bution,  Georgia,  Sumter,  Nashville,  Tallahassee,  and 
Chiclcamauga,  the  Tribunal  decided  "  that  Great  Brit-l 
ain  has  not  failed,  by  any  act  or  omission,  to  fulfill  \ 
any  of  the  duties  prescribed  by  the  three  Rules  of  \ 
Article  VI.  in  the  Treaty  of  Washington,  or  by  the 
principles  of  international  law  not  inconsistent  there 
with." 

Thus  far  the  Tribunal  had  dealt  only  with  the  con 
siderations  of  law  and  of  fact  applicable  to  the  gener 
al  question  of  the  naked  legal  responsibility  of  Great 
Britain. 

As  preparatory  to  the  ulterior  question  of  the  sum 
to  be  awarded  to  the  United  States  by  way  of  indem- 
nity,  the  Tribunal  decides ;  1.  "That  prospective  earn 
ings  can  not  properly  be  made  the  subject  of  compen- 


ALABAMA  CLAIMS.  163 

sation,  inasmuch  as  they  depend  in  their  nature  upon 
future  and  uncertain  contingencies ;"  2.  "  In  order  to 
arrive  at  an  equitable  compensation  for  the  dama 
ges  which  have  been  sustained,  it  is  necessary  to  set 
aside  all  double  claims  for  the  same  losses,  and  all 
claims  for  l gross  freights'  so  far  as  they  exceed  'net 
freights ;'  "  3.  "  It  is  just  and  reasonable  to  allow  in 
terest  at  a  reasonable  rate." 

Finally,  the  Tribunal,  deeming  it  preferable,  in  ac 
cordance  with  the  spirit  and  the  letter  of  the  Treaty 
of  Washington,  to  adopt  the  form  of  adjudication  of 
a  sum  in  gross  rather  than  to  refer  the  subject  of 
compensation  to  Assessors,  concludes  as  follows : 

"The  Tribunal,  making  use  of  the  authority  conferred  upon 
it  by  Article  VII.  of  the  said  Treaty,  by  a  majority  of  four 
voices  to  one,  awards  to  the  United  States  the  sum  of  fifteen 
millions  five  hundred  thousand  dollars  in  gold  as  the  indemni 
ty  to  be  paid  by  Great  Britain  to  the  United  States  for  the 
satisfaction  of  all  the  claims  referred  to  the  consideration  of  the 
Tribunal,  conformably  to  the  provisions  contained  in  Article 
VII.  of  the  aforesaid  Treaty. 

"  And,  in  accordance  with  the  terms  of  Article  XL  of  the 
said  Treaty,  the  Tribunal  declares  that  '  all  the  claims  referred 
to  in  the  Treaty  as  submitted  to  the  Tribunal  are  hereby  fully, 
perfectly,  and  finally  settled.' 

"  Furthermore,  it  declares  that  each  and  every  one  of  the  said 
claims,  whether  the  same  may  or  may  not  have  been  presented 
to  the  notice  of,  or  made,  preferred,  or  laid  before  the  Tribunal, 
shall  henceforth  be  considered  and  treated  as  finally  settled, 
barred,  and  inadmissible." 

It  deserves  to  be  remembered  that  the  British  Ar 
bitrator,  and  he  alone,  refused  to  sign  the  Decision. 
No  good  reason  appears  to  justify  this  refusal,  seeing 


164:  THE  TREATY  OF  WASHINGTON. 

that  the  signature  is  but  authentication,  and  the  body 
of  the  Decision  sets  forth  all  the  differences  of  opinion 
existing  among  the  Arbitrators.  Thus,  Mr.  Adams 
and  Mr.  Steempfli  were  overruled  on  two  questions; 
and  yet  they  signed  the  Act.  So  the  Viconite  d'lta- 
jub£  was  overruled  on  the  great  question  of  the  lia 
bility  of  Great  Britain  for  the  SJienandoah, ;  and  yet 
he  signed  the  Act.  In  separating  himself  from  his 
colleagues  in  this  respect,  the  British  Arbitrator  ex 
hibited  himself  as  what  he  was,  as  most  of  his  ac 
tions  in  the  Tribunal  demonstrated, — as  his  subse 
quent  avowal  established, — not  so  much  a  Judge,  or 
an  Arbitrator,  as  the  volunteer  and  officious  attor 
ney  of  the  British  Government. 

EFFECT   OF  THE  AWARD. 

In  reflecting  on  this  Award,  and  seeking  to  deter 
mine  its  true  construction,  let  us  see,  in  the  first  place, 
what  it  actually  expresses  either  by  inclusion  or  ex 
clusion. 

The  Award  is  to  the  United  States,  in  conformity 
with  the  letter  of  the  Treaty,  which  has  for  its  well- 
defined  object  to  remove  and  adjust  complaints  and 
claims  "on  the  part  of  the  United  States." 

But  the  history  of  the  Treaty  and  of  the  Arbitra 
tion  shows  that  the  United  States  recover,  not  for  the 
benefit  of  the  American  Government  as  such,  but  of 
such  individual  citizens  of  the  United  States  as  shall 
appear  to  have  suffered  loss  by  the  acts  or  neglects 
of  the  British  Government.  It  is,  however,  not  a  spe-  \ 
cial  trust  legally  affected  to  any  particular  claim  or  I 


ALABAMA  CLAiMS.  165 

claimants,  but  a  general  fund  to  be  administered  by 
the  United  States  in  good  faith,  in  conformity  with 
their  own  conceptions  of  justice  and  equity,  within 
the  range  of  the  Award.  If,  according  to  any  theory 
of  distribution  adopted  by  the  United  States,  the 
sum  awarded  prove  inadequate,  we  have  no  claim  on 
Great  Britain  to  supply  the  deficiency :  on  the  other 
hand,  if  the  Award  should  prove  to  be  in  excess,  we 
are  not  accountable  to  Great  Britain  for  any  balance. 
On  this  point,  precedents  exist  in  the  diplomatic  his 
tory  of  Great  Britain  herself. 

The  Tribunal  does  not  afford  us  any  rules  of  limit 
ation  affecting  the  distribution  of  the  Award,  un 
less  in. the  declaration  that  "prospective  earnings," 
"double  claims"  for  the  same  losses,  and  "claims  for 
gross  freights,  so  far  as  they  exceed  net  freights,"  can 
not  properly  be  made  the  subject  of  compensation,— 
that  is  to  say,  as  against  Great  Britain. 

Nor  does  the  Tribunal  define  affirmatively  what 
claims  should  be  satisfied  otherwise  than  in  the  com 
prehensive  terms  of  the  Award,  which  declares  that 
the  sum  awarded  is  "  the  indemnity  to  be  paid  by 
Great  Britain  to  the  United  States  for  the  satisfac 
tion  of  all  the  claims  referred  to  the  consideration  of 
the  Tribunal,  conformably  to  the  provisions  contained 
in  Article  VII.  of  the  aforesaid  Treaty." 

The  Arbitrators, — be  it  observed, — do  not  say  for 
the  satisfaction  of  certain  specific  claims  among  those 
referred  to  the  consideration  of  the  Tribunal,  but  of 
"  all  the  claims  "  so  referred  conformably  to  the  pro 
visions  of  the  Treaty. 


THE   TREATY   OF  WASHINGTON. 

Now,  the  practical  question  which  arises  is  wheth 
er  the  schedules  of  claims,  which  were  presented  to 
the  Tribunal  as  documentary  proofs  on  the  part  of 
the  United  States,  are  conclusive,  either  as  to  what 
they  contain  or  what  they  do  not  contain,  to  establish 
rules  of  distribution  under  the  Award. 

This  point  is  settled  by  what  occurred  in  discus 
sions  before  the  Tribunal. 

Great  Britain  had  presented  a  table,  composed  in 
large  part  of  estimates,  appreciations,  and  arbitrary 
or  suppositions  averages:  in  consequence  of  which 
the  United  States  presented  other  tables,  to  which 
the  British  Agent  objected  that  these  tables  compre 
hended  claimants,  and  subjects  of  claim,  not  comprised 
in  the  actual  schedules  filed  by  the  United  States :  to 
which  the  American  Agent  replied  by  showing  that 
the  Tribunal  had  before  it,  in  virtue  of  the  Treaty, 
all  the  reclamations  made  by  the  United  States  in 
the  interest  of  individuals  injured,  and  comprised  un 
der  the  generic  name  of  Alabama  Claims  [le  tribunal 
reste  saisi  de  la  question  de  toutes  les  reclamations 
faftes  par  les  Etats-Unis  dans  1'interet  des  individus 
leses,  et  comprises  sous  le  noin  generique  de  reclama 
tions  de  V  Alabama]. 

Some  discussions  on  the  same  subject  afterward  oc 
curred  between  Mr.  Stsempfli  and  Sir  Alexander  Cock- 
burn,  which  conclusively  prove  that  the  result  reached 
did  not  accept  as  binding  either  the  tables  presented 
by  the  United  States  or  the  deductions  therefrom 
claimed  by  Great  Britain.  The  estimate  of  Mr. 
Stsempfli  seems  to  have  been  the  basis  of  conclusion ; 


ALABAMA  CLAIMS.  167 

and  that  estimate  is  founded  on  dividing  the  differ 
ence  between  the  American  estimate  of  $14,437,000, 
and  the  British  estimate  of  $7,074,000,  the  mean  of 
which  is  $10,905,000:  which  mean  does  not  in  any 
sort  represent  the  actual  claims  of  the  United  States. 

Indeed,  one  of  the  Arbitrators  expressly  declared 
that,  in  arriving  at  a  conclusion,  the  Arbitrators  were 
not  to  be  regarded  as  making  an  assessment,  or  con- 
fining  themselves  to  the  schedules,  estimates,  or  tables 
of  either  of  the  two  Governments. 

Whether  the  sum  awarded  be  adequate,  depends,  in 
my  opinion,  on  whether  distribution  be  made  among 
actual  losers  only  and  citizens  of  the  United  States, 

ALIDITY   OF  THE  AWARD. 

The  principles  of  the  Award  are  in  conformity  with 
the  Rules  of  the  Treaty,  which  do  but  embody  in  pre 
cise  language  the  traditional  policy,  inaugurated  by 
Washington  with  the  active  support  of  Jefferson,  pro 
fessed  by  every  successive  President  of  the  United 
States,  and  authenticated  by  repeated  Acts  of  Con 
gress. 

That  Great  Britain  loyally  accepts  the  Award,  and 
will  in  due  time  pay  to  the  United  States  the  amount 
awarded,  it  is  impossible  to  doubt.  The  Queen's 
speech,  at  the  opening  of  the  present  session  of  Par 
liament,  not  only  declares  the  acquiescence  of  the 
British  Government  in  the  Award,  but  also  recom- 
mends  speedy  payment  in  conformity  with  the  tenor 
of  the  Treaty. 

And  while  prominent  members  of  both  Houses, 


168  THE   TREATY   OF  WASHINGTON. 

such  as  the  Earl  of  Derby,  the  Marquess  of  Salisbury, 
and  Lord  Cairns,  in  the  House  of  Lords,  and,  in  the 
House  of  Commons,  Mr.  Disraeli,  Mr.  Horsman,  and 
others,  spoke  complainingly  of  the  Treaty,  and  of  the 
new  Rules,  rather  than  of  the  Award,  yet  Lord  Gran- 
ville,  the  Marquess  of  Ripon,  and  the  Lord  Chancel 
lor,  in  one  House,  and  Mr.  Gladstone,  Mr.  Laing,  Mr. 
Lowe,  and  others,  in  the  other  House,  defended  the 
whole  transaction  with  its  results,  as  alike  beneficial 
to-  Great  Britain  and  the  United  States. 

Among  the  discontented  persons  is  Mr.  Laird,  who 
finds  himself  characterized  as  one  of  those  who  prefer 
"  private  gain  to  public  honor,"  and  who  seems  to 
think  that  the  Government  of  that  day  did  not  in 
vestigate  him  and  his  family  so  much  as  it  might  and 
should  have  done  to  the  end  of  detecting  and  expos 
ing  the  false  pretenses  with  which  they  covered  up 
the  illegal  destination  of  the  Alabama.  Lord  Redes- 
dale  also  continues  to  mourn  over  the  insensibility 
of  the  British  Government  to  his  partnership  argu 
ment,  and  refuses  to  be  comforted,  although  the  Gov 
ernment  did,  in  fact,  present  the  argument  with  all 
possible  seriousness  in  the  British  Counter-Case  and 
elsewhere,  in  season  to  have*  it  distinctly  responded 
to  by  the  Counsel  of  the  United  States  (Argument, 
p.  479  and  seq.),  and  considered  or  not  considered  by 
the  Tribunal 

The  elaborate  speeches  of  the  Earl  of  Derby  and 
Mr.  Disraeli  sufficiently  indicate  the  footing  on  which 
objection  to  the  Treaty  and  to  the  Award  is  to  be 
placed  in  England.  Little  is  said  in  criticism  of  the 


ALABAMA   CLAIMS.  169 

amount  awarded  as  indemnity.^  Earl  Granville,  in 
deed,  does  not  fail  to  remind  the  Earl  of  Derby  of  the 
admission  made  by  the  latter  in  the  House  of  Com 
mons,  to  the  effect  that  the  Americans  were  very 
likely  to  establish  their  claims,  or  some  of  them  at 
least,  and  to  get  their  money.  This  admission  on  the 
part  of  Lord  Stanley  evinced  his  manliness  and  truth 
fulness.  Even  the  Chief  Justice  at  Geneva  was  forced 
to  concede  the  responsibility  of  Great  Britain  for  the 
acts  of  the  Alabama,  and  did  not  very  skillfully  es 
cape  making  the  same  concession  as  to  the  Florida. 

The  marvel  is,  that  Lord  Eussell  should  have  so 
persistently  refused  to  agree  to  any  terms  of  redress, 
when  he  himself  could  write  to  Lord  Lyons  on  the 
27th  of  March,  1863,  "  that  the  cases  of  the  Alabama 
and  Oreto  were  a  scandal,  and,  in  some  degree,  a  re 
proach  to  our  laws."  I  demand  of  myself  sometimes, 
in  reflecting  on  the  strange  obstinacy  of  Lord  Russell 
in  this  respect,  as  contrasted  with  the  conduct  of  the 
Earl  of  Derby,  the  Earl  of  Clarendon,  and  Earl  Gran 
ville,  whether  there  be  not  some  mystery  in  the  mat 
ter,  some  undisclosed  secret,  some  unknown  moral  co 
ercion,  to  account  for  and  explain  the  conduct  of  Lord 
Russell  ?  The  extraordinary  incident  of  the  failure 
of  the  Government  to  obtain  from  the  Law  Officers 
of  the  Crown  any  response  to  the  call  for  their  opin 
ion  in  season  to  detain  the  Alabama, — which  incident 
Sir  Roundell  Palmer  vainly  attempted  to  explain  at 
Geneva, — would  really  tend  to  make  one  suspect  that 
some  member  of  the  Government  more  powerful  than 
himself  had  defeated  those  good  intentions  of  Lord 


170  THE   TREATY   OF  WASHINGTON. 

Russell,  with  which  he  is  credited  by  Mr.  Adams. 
May  it  not  have  been,  must  it  not  have  been,  Lord 
Palmerston  ?  Is  Earl  Russell  solely  responsible  for 
the  deplorable  errors  of  that  Administration  ?  * 

*  I  repeat,  in  Great  Britain  issue  is  not  to  be  made  on  the 
pecuniary  part  of  the  Award,  but  on  the  construction  of  the 
opinions  expressed  and  the  legal  conclusions  arrived  at  by  the 
Tribunal  of  Arbitration. 

The  opinions  of  all  the  Arbitrators  in  the  case  of  the  Alaba 
ma,  including  that  of  the  British  Arbitrator,  are  concurrent  to 
the  effect  that,  by  reason  of  the  mendacity  of  her  builders,  the 
Lairds,  co-operating  with  corruption,  negligence,  or  stupidity 
on  the  part  of  the  Board  of  Customs,  the  British  Government 
was  made  responsible  for  the  depredations  committed  by  her 
on  the  commerce  of  the  United  States. 

But  the  circumstances  of  the  actual  escape  of  the  Alabama 
reveal  a  singular  imperfection  in  the  administrative  mechanism 
of  the  British  Government. 

On  the  23d  of  July,  1862,  the  British  Government  was 
aroused  from  its  indifference  in  regard  to  the  equipment  of  the 
Alabama,  by  receiving  from  Mr.  Adams,  with  some  other 
papers,  an  opinion  of  a  Queen's  Counselor,  ^^jipw^irjgobert, 
Collier,  to  the  effect  that,  if  the  Alabama  were  suffered  to  de 
part,  the  Board  of  Customs  and  the  Government  would  incur 
"  heavy  responsibility."  The  case  had  become  urgent.  The 
Alabama  might  sail  at  any  moment.  Lord  John  Russell  has- 
.  tened  to  hide  himself  under  the  robes  of  the  "Law  Officers  of 
the  Crown," — that  is  to  say,  Sir  John  Harding,  the  Queen's  Ad 
vocate-General  ;  Sir  William  Atherton,  the  Attorney-General ; 
.and  Sir  Roundell  Palmer,  the  Solicitor-General. 

But  the  oracles  did  not  speak  until  the  29th  of  July,  am 
then  advised  detention  /  in  consequence  of  which,  on  the,  morn 
ing  of  that  day,  the  Alabama,  whose  managers  appear  to  hav< 
had  intimate  knowledge  of  every  step  taken  or  not  taken  b; 
the  Government,  departed  from  Liverpool. 

Lord  John  Russell,  in  a  conference  with  Mr.  Adams  on  the 
31st  of  July,  imputed  this  misadventure  to  "  the  sudden  devel- 


ALABAMA  CLAIMS.  171 

It  deserves  to  be  noted  in  this  relation  that  al 
though  Edwards  and  possibly  some  other  of  the  pub- 

opment  of  a  malady  of  the  Queen's  Advocate,  Sir  John  D. 
Harding,  which  had  utterly  incapacited  him  for  the  transaction 
of  business.  This,"  he  added,  "  had  made  it  necessary  to  call 
in  other  parties  [he  does  not  say,  others  of  the  Laic  Officers], 
whose  opinion  had  been  at  last  given  for  the  detention  of  the 
gun-boat." 

The  Counsel  of  the  United  States,  in  their  Argument,  invite 
attention  to  the  unsatisfactoriness  of  this  explanation.  They 
found  in  the  Documents  annexed  to  the  British  Case  eight 
opinions  of  the  "Law  Officers  of  the  Crown,"  prior  to  that  of 
July  29th,  all  of  which,  except  one  dated  June  30th,  are  signed 
by  Sir  John  Harding,  and  also  either  by  Sir  William  Atherton 
or  by  Sir  Roundell  Palmer.  Thereupon,  we  inferred  that  the 
Queen's  Advocate  had  become  sick  on  or  before  the  30th  of 
June ;  and  we  also  inferred  that  "  it  was  not  necessary  on  the 
29th  of  July  to  call  in  new  parties,  but  only  to  call  upon  the 
old."  These  inferences  were  legitimate,  and  were  confirmed  in 
the  sequel  by  the  highest  authority. 

But  thereupon  the  British  Arbitrator,  after  speaking  of  the 
last  inference  as  "  an  ungenerous  sneer,"  remarks : 

"The  unworthy  insinuation  here  meant  to  be  conveyed  is, 
that  Lord  Russell  stated  that  which  was  untrue, — an  insin 
uation  which  will  be  treated  as  it  deserves  by  every  one  who 
knows  him.  It  is  obvious  that  Mr.  Adams  must,  in  this  par 
ticular,  have  misunderstood  his  Lordship." 

The  Chief  Justice  unconsciously  admits  that  if  Lord  Russell 
said  this,  "he  stated  that  which  was  untrue,"  and  expects  us  to 
disbelieve  Mr.  Adams  in  order  to  shield  Lord  Russell. 

I  prefer  to  believe  Mr.  Adams.  Nay,  the  statement  imputed 
to  Lord  Russell  by  Mr.  Adams  is  in  substance  reaffirmed  and 
adopted  in  the  British  Case  [p.  118]. 

The  senseless  prejudice  which  fills  the  mind  of  the  Chief 
Justice  in  reference  to  the  LTnited  States,  their  Agent,  and  their 
Counsel,  is  rendered  the  more  conspicuous  here  by  the  fact 
that,  when  he  threw  out  this  "  ungenerous  sneer"  and  this  "  un- 


172  THE   TREATY  OF  WASHINGTON. 

lie  officers,  whose  negligence  or  fraud  has  reflected  so 
seriously  on  the  British  Government,  may  have  been 


worthy  accusation"  of  his  against  the  American  Counsel,  he  had 
before  him  a  statement  on  the  subject,  presented  to  the  Tribu 
nal  of  Arbitration  by  Sir  Roundell  Palmer,  as  follows: 

"  Sir  John  Harding  was  ill  from  the  latter  part  of  June,  1862, 
and  did  not,  after  that  time,  attend  to  Government  business. 
It  was  not,  however,  known,  until  some  weeks  afterward,  that 
he  was  unlikely  to  recover ;  nor  did  the  disorder  undergo,  till 
the  end  of  July,  such  a  development  as  to  make  the  Government 
aware  that  the  case  was  one  of  permanent  mental  alienation. 

"Although,  when  a  Law  Officer  was  ill,  he  would  not  be 
troubled  with  ordinary  business,  it  was  quite  consistent  with 
probability  and  experience  that,  in  a  case  of  more  than  usual 
importance,  it  would  be  desired,  if  possible,  to  obtain  the  ben 
efit  of  his  opinion.  Under  such  circumstances,  the  papers 
would  naturally  be  sent  to  his  private  house ;  and,  if  this  was 
done,  and  if  he  was  unable  to  attend  to  them,  some  delay  would 
necessarily  take  place  before  the  impossibility  of  his  attending 
to  them  was  known. 

"Lord  Russell  told  Mr.  Adams  [July  31,  1862]  that  some 
delay  had,  in  fact,  occurred  with  respect  to  the  Alabama  in 
consequence  of  Sir  John  Harding's  illness.  He  could  not  have 
made  the  statement,  if  the  fact  were  not  really  so ;  because, 
whatever  the  fact  was,  it  must  have  been,  at  the  time,  known 
to  him.  The  very  circumstance  that  Sir  J.  Harding  had  not 
already  advised  upon  the  case  in  its  earlier  stage  might  be  a 
reason  why  it  should  be  wished  to  obtain  his  opinion. 

"  Sir  J.  Harding  and  his  wife  are  both  [some  years  since] 
dead ;  so  are  Sir  W.  Atherton  [the  then  Attorney-General]  and 
his  wife;  no  information,  therefore,  as  to  the  circumstances 
which  may  have  caused  delay,  with  respect  to  the  delivery  at 
their  private  house,  or  the  transmission  and  consideration  of 
any  papers  on  this  subject,  can  now  be  obtained  from  them. 

"  The  then  Solicitor-General  was  Sir  R.  Palmer,  who  is  able 
to  state  positively  that  the  first  time  he  saw  or  heard  of  the 
papers  sent  to  the  Law  Officers  [i.  e.,  all  three  Law  Officers]  on 


ALABAMA  CLAIMS.  173 

dismissed,  yet  it  does  not  appear  that  any  of  the 
guilty  parties,  such  as  Laird,  Miller,  Thomas,  Prioleau, 

the  23d  and  25th  or  26th  of  July,  was  on  the  evening  of  Mon 
day,  the  28th  of  July,  when  he  was  summoned  by  the  Attor 
ney-General,  Sir  W.  Atherton,  to  consider  them  in  consultation, 
and  when  the  advice  to  be  given  to  the  Government  was  agreed 
upon."  Sir  R.  Palmer  thinks  it  his  duty  to  add,  that  "  no  Gov 
ernment  ever  had  a  more  diligent,  conscientious,  and  laborious 
servant  than  Sir  W.  Atherton ;  and  that  it  is  in  the  last  degree 
unlikely  that  he  would  have  been  guilty  of  any  negligence  or 
unnecessary  delay  in  the  consideration  of  papers  of  such  im 
portance." 

We  thus  learn  that  in  the  latter  part  of  June,  as  the  Amer*- 
ican  Counsel  had  supposed,  Sir  John  Harding  was  unable  to 
attend  to  the  business  of  the  Government.  Next,  we  are  in 
formed  that  the  papers  might  have  been  sent  to  his  private 
house,  to  remain  there  unattended  to ;  but  it  is  not  asserted  that 
they  icere  so  sent  in  fact.  Nay,  we  are  left  to  conjecture  that 
they  might  have  been  sent  to  the  house  of  Sir  William  Ather 
ton  ;  but  it  is  not  asserted  that  they  were.  Indeed,  Sir  Roundell 
Palmer  speaks  of  "  the  delivery  at  their  private  house,"  mean 
ing  apparently  "  houses."  Next,  we  are  asked  to  believe  that, 
because  of  the  death  of  "  Sir  J.  Harding  and  his  wife,"  and  that 
of  "  Sir  W.  Atherton  and  his  wife,"  no  means  exist  to  explain 
the  fatal  delay  in  this  case,  by  reason,  of  which  so  much  loss 
and  shame  have  been  brought  on  Great  Britain. 

Was  it  ever  before  imagined  that  the  death  of  an  Advocate- 
General  or  an  Attorney-General,  and  their  wives,  should  leave 
a  Government  wholly  without  means  of  knowledge  on  such  a 
subject,  or  should  be  put  forward  to  explain  such  delay  of  ac 
tion  on  the  part  of  Ministers  ? 

Who  carried  the  papers  to  the  house  either  of  Sir  John 
Harding  or  Sir  William  Atherton,  or  both?  Why  did  Lord 
Russell  permit  six  days  to  elapse  without  inquiring  for  the  an 
swer  to  his  reference  when  every  hour  was  pressing  for  action  ? 
Who  brought  the  papers  away  from  the  place  in  which  they 
were,  whether  the  house  of  Sir  J.  Harding,  or  the  house  of  Sir 


174:  THE  TKEATY  OF  WASHINGTON. 

or  other  Englishmen,  whose  false  representations  de 
ceived  the  British  Government,  and  involved  Great 


W.  Atherton,  if  they  ever  went  to  either?  Why  were  they  not 
sent  to  the  house  of  Sir  Roundell  Palmer  ?  How  did  they  ulti 
mately  get  into  the  hands  of  Sir  William  Atherton  and  Sir 
Roundell  Palmer? 

Now,  whatever  Sir  Roundell  Palmer  says  I  believe ;  and  his 
declaration  shows  that  there  is  no.  more  reason  to  suppose  the 
papers  were  sent,  either  to  Sir  J.  Harding  or  to  Sir  W,  Ather 
ton,  of  which  nothing  is  known,  than  that  they  were  sent  to 
Sir  R.  Palmer  himself,  to  whom  we  know  they  were  not  sent, 
as  he  positively  declares. 

Observe  that  Sir  R.  Palmer  takes  pains  to  commend  the  dili 
gence,  conscientiousness,  and  industry  of  Sir  W.  Atherton,  from 
which  it  is  plain  to  infer  that  he  never  received  the  papers. 
Of  course,  the  allusion  to  the  death  of  him  and  his  wife  is  as 
little  to  the  purpose  as  that  to  the  death  of  Sir  J.  Harding  and 
his  wife,  or  the  insanity  of  Sir  J.  Harding. 

Another  observation.  According  to  Sir  Roundell  Palmer's 
statement,  there  were  two  successive  references  to  the  Law 
Officers,— on  the  23d  and  the  25th  or  26th.  He  implies  that 
each  of  these  references  might  have  been  communicated  to  Sir 
J.  Harding  and  to  Sir  William  Atherton.  He  does  not  speak 
of  the  insane  Sir  J.  Harding  alone,  as  Lord  Russell  does ;  but 
is  careful  to  make  excuse  in  like  manner  for  the  sane  Sir  W. 
Atherton.  Now,  when  he  was  called  in  for  consultation  on  the 
evening  of  the  28th,  did  it  not  occur  to  him  to  inquire  why 
these  sets  of  papers,  each  one  of  which  ought  to  have  been 
communicated  to  him  at  their  respective  dates,  were  not  so 
communicated  ?  Why  speculate  on  the  effects  of  the  insanity 
of  Sir  J.  Harding  or  the  integrity  of  Sir  W.  Atherton  ?  Why 
not  as  well  lay  before  us  conjectural  inferences  founded  on  the 
diligence  or  uprightness  of  him,  Sir  R.  Palmer  ?  Should  not  the 
suppression  of  the  papers  as  to  himself  have  suggested  to  him 
that  they  had  been  suppressed  as  to  Sir  J.Harding  and  SirW. 
Atherton  ? 

We  revert  now  to  Lord  Russell's  statement  to  Mr.  Adams, 


ALABAMA  CLAIMS. 

Britain  in  this  perilous  controversy  with 
States,  have  ever  been  punished  in  any  way.  Indict- 
that  the  delay  was  caused  by  the  insanity  of  Sir  J.  Harding, 
which  tiw.de  it  necessary  to  call  in  other  parties.  What  other 
parties?  Why,  forsooth,  the  other  two  "Law  Officers  of  the 
Crown"  disguised  by  Lord  Russell  under  the  designation 
"  other  parties."  But  Sir  R.  Palmer  assures  us  that  the  pa 
pers  [if,  indeed,  they  were  sent  at  all]  must  have  been  sent 
originally  "to  the  Law  Officers,  i.  e.,  all  three  Law  Officers." 
Lord  Russell  therefore  had  no  more  right  to  impute  the  delay 
to  Sir  J.  Harding  than  to  Sir  W.  Atherton ;  for,  even  to  this 
day,  Sir  R.  Palmer  can  not  say  to  which  of  the  two,  if  to  ei 
ther,  the  delay  is  imputable.  And  yet  Lord  Russell  implies 
that  the  delay  was  occasioned  by  the  insanity  of  Sir  J.  Har 
ding,  while  neither  he  nor  Sir  R.  Palmer  ventures  to  affirm  that 
the  papers  were  ever  sent  to  Sir  J.  Harding. 

In  view  of  all  these  imperfect  and  irreconcilable  statements, 
the  presumption  remains  that  some  person  in  the  Government 
had  the  means  of  traversing  its  intention,  and  withholding 
these  papers  from  all  the  three  Law  Officers  until  the  Alaba 
ma  was  ready  to  sail.  I  do  not  say  Lord  Russell  was  that 
person;  but  I  think  he  knows  who  it  was;  and  if  he  desires  to 
vindicate  his  honor,  of  which  he  and  the  Chief  Justice  say  so 
much,  he  will  best  do  it,  not  by  "sneers"  at  the  American 
Counsel,  but  by  disclosing  the  name  of  the  person  in  the  For 
eign  Office  who  thus  betrayed  and  dishonored  the  Govern 
ment. 

All  questions  depending^  on  this  incident  are  now  termi 
nated.  But  the  incident  itself  has  permanent  value  as  illus 
trating  the  weakness  of  the  British  Government  on  the  side 
of  its  so-called  "  Law  Officers," — that  is,  busy  members  of  the 
Bar,  distracted  by  their  private  practice,  but  in  whose  opin 
ions  the  Government  lives  and  moves;  who  have  "papers 
sent"  to  them  by  the  Government  in  every  great  emergency, 
without  their  being  actual  and  ever  present  members  of  the 
Government,  like  the  "  Law  Officers  "  of  the  L'nited  States. 

Here,  in  the  United  States,  as  in  the  case  of  the  JIaiiry,  for 


176  THE  TREATY  OF  WASHINGTON. 

ments  were,  indeed,  found  against  some  inferior  per 
sons,  but  not  against  the  responsible  authors  of  the 
loss  and  shame  which  the  Alabama  and  the  Florida 
brought  on  Great  Britain.  Traces  occasionally  appear 
in  the  journals  of  London  of  some  discontent  on  the 
part  of  tax-payers,  who  are  now  called  on  to  respond 
to  the  United  States  for  the  dishonorable  gains  of 
the  Lairds  and  the  Millers.  Expressions_of  sentiment 
in  this  respect  appear  in  the  recent  debates  in  the 
House  of  Commons.  Indeed,  if  an  account  were  taken 
of  the  injury  inflicted  on  the  British  people  by  the 
actual  losses  in  Confederate  bonds  purchased  in  Great 
Britain,  and  the  profits  lost  on  bonds  of  the  United 
States  not  purchased  there  and  sold  instead  in  Ger 
many  ;  the  losses  on  British  ships  and  cargoes  cap 
tured  in  attempting  to  run  the  blockade  of  Southern 
ports ;  the  payment  by  the  Government  to  the  United 


instance,  "  papers  are  presented  to  the  Secretary  of  State  by 
the  British  Minister  on  the  llth  day  of  October,  1855,  alleg 
ing  unlawful  equipment  in  violation  of  neutrality  by  that  ves 
sel;  the  papers  are  sent  to  the  Attorney-General  on  the  12th, 
and  on  the  same  day  orders  are  given  by  telegraph  to  embar 
go  the  vessel,  and  are  actually  executed  on  the  13th  at  New 
York. 

Mr.  Fawcett  has  not  without  reason  called  the  attention  of 
the  House  of  Commons  to  this  defect  in  the  conduct  of  the  law 
business  of  the  British  Government.  The  reply  that  the  At 
torney  or  Solicitor  General  should  be  allowed  to  continue  in 
private  business,  in  order  to  possess  competent  knowledge  for 
the  conduct  of  the  business  of  the  Government,  is  quite  pre 
posterous;  it  would  be  just  as  reasonable  to  insist  that  the 
Lord  Chancellor  or  the  Chief  Justice  of  the  Queen's  Bench 
must  continue  at  the  Bar. 


ALABAMA  CLAIMS.  177 

States  of  indemnity  for  the  captures  made  by  the  Ala- 
bamctjthe  Florida,  and  the  SJienandoah;  the  rise  in 
the  cost  of  cotton  and  naval  stores,  and  the  conse 
quent  losses  to  commerce,  to  manufactures,  and  to  la 
bor,  in  Great  Britain,  occasioned  by  the  prolongation 
of  our  Civil  War :  in  reflecting  on  all  this,  it  will  be 
perceived  that  the  hasty  issue  of  the  Queen's  Procla 
mation,  which  gave  to  the  Confederates  a  standing  in 
Great  Britain,  and  the  means  and  spirit  to  continue 
hostilities,  was  an  ill-advised  measure,  hardly  less  in 
jurious  to  Great  Britain  than  it  was  to  the  United 
States.  These  are  matters  which,  as  questions  of  di 
plomacy  between  the  two  Governments,  the  Treaty 
of  Washington  and  the  Award  of  the  Tribunal  close 
up ;  but  they  remain  as  historical  facts,  full  of  admoni 
tion  to  all  Governments.  Discite  justitiam  moniti. 

FILIBUSTER  OBJECTIONS. 

Do  the  Eules,  as  construed  by  the  Decision  of  the 
Treaty,  disclose  that  due  diligence,  voluntary  dili 
gence,  in  the  discharge  of  neutral  duties,  has  relation 
to  the  exigency,  and  that  the  failure  therein  is  not  ex 
cusable  by  the  insufficiency  of  statute  means  of  action? 
So  thought  Washington  and  Jefferson.  They  acted, 
when  no  statute  existed.  It  avails  nothing  to  say 
tint  ours  is  a  constitutional  government,  with  legal 
forms  which  impede  administrative  action.  If  Con 
gress  has  not  imparted  to  the  Executive  adequate 
powers, — if,  for  want  of  such  fit  legislation,  the  Exec 
utive  can  not  act  effectively  in  some  given  cases  to 
prevent  illegal  expeditions, — if,  in  consequence  there- 

M 


178  THE   TREATY   OF   WASHINGTON. 

of,  the  subjects  of  any  friendly  State  are  injured,— if, 
in  a  word,  we  should  be  so  foolish  as  to  insist  on 
the  privilege  of  possessing  laws  designedly  imperfect, 
and  which  thus  favor  the  violation  of  law,  and  which 
are  insufficient  to  enable  the  President  to  discharge 
the  international  obligations  of  the  United  States,— 
then  it  is  proper  that  we  should  pay  for  the  enjoy 
ment  of  such  a  privilege  by  answering  to  any  friendly 
Power  for  the  injurious  consequences  of  our  self-im 
posed  impotency  to  perform  the  necessary  duties  of 
an  independent  sovereign  State. 

There  is  no  difficulty  whatever  in  the  question.  If, 
on  the  one  hand,  in  the  case  of  war  between  two 
other  Powers,  the  United  States  desire  and  intend  to 
be  neutral,  it  is  to  be  hoped  they  will  not  suffer 
themselves  to  be  misled  by  the  interests  of  some  ship 
builders,  or  the  wild  schemes  of  some  band  of  advent 
urers,  foreign  or  domestic,,  or  even  by  the  sentiment 
of  sympathy  for  this  or  that  foreign  cause,  into  per 
mitting  violations  of  the  law  of  the  land  and  of  the 
rights  of  other  States.  If,  on  the  other  hand,  the 
United  States  at  any  time  desire  or  intend  to  go  to 
war  with  some  foreign  Power,  whether  for  induce 
ments  of  sentiment  or  for  objects  of  ambition,  it  is  to 
be  hoped  they  will  manfully  say  so,  in  the  face  of  the 
world,  and  will  not  sneak  into  national  hostilities  by 
means  of  the  expeditions  or  equipments  of  private 
persons,  citizens  or  foreigners,  conducting  war  in  dis 
guise  while  the  Government  falsely  pretends  to  be  at 
peace.  All  such  "national  activities," — that  is,  acts 
of  JtUbusterism, — whether  fraudulently  encouraged  or 


ALABAMA  CLAIMS.  179 

itfsufficiently  discouraged  by  any  Government,  are  in 
deed  fettered  by  the  three  Rules,  as  they  were  al 
ready,  so  far  as  morality  or  law  could  do  it,  being 
classed  by  statute  with  piracy,  perjury,  arson,  murder, 
and  other  kindred  "  Pleas  of  the  Crown."  True,  there 
is  tendency  of  opinion  in  the  United  States,  as  there 
is  in  Great  Britain,  to  think  that  all  rebellion  is  pre 
sumptively  wrong  at  home,  and  that  all  rebellion  is 
presumptively  right  every  where  else;  but  that  is  a 
theory  which  has  its  inconveniences.  In  a  word,  there 
is  no  possible  view  of  the  subject  in  which  filibuster- 
ism  is  not  a  crime  and  a  shame,  without  even  the 
mean  excuse  of  possible  but  dishonorable  benefits  to 
the  United  States.  At  all  times,  under  all  adminis 
trations,  private  equipments  in  our  ports,  for  the  pur 
pose  of  hostilities  against  any  country  with  which  we 
were  at  peace,  have  been  treated  as  what  they  are, 
criminal  violations  of  the  law  of  the  land  and  of  the 
law  of  nations.  Statesmen,  jurists,  and  tribunals  are 
all  of  accord  on  this  point.  Contracts  for  such  equip 
ments  are  "  so  fraught  with  illegality  and  turpitude 
as  to  be  utterly  null  and  void."  ..."  There  can  be  no 
question  of  the  guilt  and  responsibility  of  a  Govern 
ment  which  encourages  or  permits  its  private  citizens 
to  organize  and  engage  in  such  predatory  and  unlaw 
ful  expeditions  against  a  State  with  which  that  Gov 
ernment  is  at  peace."  ..."  This  principle  is  univers 
ally  acknowledged  by  the  law  of  nations.  It  lies  at 
the  foundation  of  all  Government.  It  is,  however, 
more  emphatically  true  in  relation  to  citizens  of  the 
United  States."  Such  was  the  doctrine  of  the  United 


ISO  THE    TREATY   OF  WASHINGTON. 

States  of  old:  such  is  their  doctrine  now,  neither 
more  nor  less  by  reason  of  our  negotiation  with  Great 
Britain. 

SALE    OF   ARMS  NOT  AFFECTED   BY   THE   TREATY   OR  THE 

AWARD. 

Some  persons  have  supposed  that  the  Treaty  affects 
the  question  of  the  sale  of  arms  or  munitions  of  war 
to  a  Belligerent.  That  is  an  error.  Wherever,  as  be 
tween  the  parties  to  the  Treaty,  the  sale  of  arms  was 
lawful  before,  it  is  lawful  now ;  wherever  it  is  unlaw 
ful  now,  it  was  unlawful  before.  That  is  a  question' 
to  which  the  action  of  the  German  Embassador  in 
Great  Britain  during  the  late  war  between  France, 
and  Germany  has  drawn  the  attention  of  all  Europe, 
and  which  is  certain  to  acquire  importance  in  any 
future  great  war ;  |)ut  it  is  not  touched,  in  fact,  by  the 
Treaty  of  Washington,  and  did  not  come  before  the 
Tribunal  of  Geneva. 

QUESTION  OF  SUPPLIES  OF  COAL. 

One  specific  objection  to  the  Rules  of  the  Treaty, 
and  only  one,  of  any  apparent  force,  has  passed  under 
iny  observation,  that  of  the  Austrian  statesman,  Count 
von  Beust :  the  suggestion,  namely,  as  to  the  second 
Rule,  relative  to  coaling  and  refitting  in  neutral  ports, 
which,  it  is  alleged,  "  gives  to  England,  through  her 
possession  of  neutral  stations  in  all  parts  of  the  world, 
a  palpable  advantage  over  other  States,  which  have 
not  the  same  facilities  at  command." 

This  objection  is  one  of  apprehension,  rather  than 


ALABAMA   CLAIMS.  181 

of  fact.  When  the  United  States  and  Great  Britain 
shall,  in  conformity  with  the  Treaty,  bring  the  new 
Rules  to  the  knowledge  of  other  maritime  Powers, 
such  Powers  will  of  course  present  for  consideration 
all  proper  objections  or  qualifications  to  those  Rules. 

Count  von  Beust  goes  on  to  speak  of  the  declara 
tion  made  by  Austria,  Prussia,  and  Italy  in  1866, 
which  indicates  that  he  was  considering  the  subject 
in  the  relation  of  contraband  rather  than  of  simple  re 
fitting  in  neutral  ports. 

But  the  precise  question  of  the  supply  of  coal  in 
neutral  ports  is  not  prejudged  by  the  Treaty  of 
Washington,  nor  by  the  opinions  of  the  Tribunal  of 
Arbitration.  The  United  States  are  quite  as  much 
interested  in  having  access  to  supplies  of  coal  "at  neu 
tral  stations  in  all  parts  of  the  world  "  as  Austria,  or 
Prussia,  or  Italy ;  and  we  may  presume  that  Count 
Sclopis  did  not  fail  to  reflect  on  the  interests  of  Italy 
in  this  behalf. 

One  of  the  "  Considerants  "  of  the  Award  had  for 
its  special  object  to  prevent  misconstruction  of  the 
second  Rule.  We  quote  it  as  follows  : 

"  In  order  to  impart  to  any  supplies  of  coal  a  character  in 
consistent  with  the  second  Rule,  prohibiting  the  use  of  neu 
tral  ports  or  waters  as  a  base  of  naval  operations  for  a  Bellig 
erent,  it  is  necessary  that  the  said  supplies  should  be  connect 
ed  with  special  circumstances  of  time,  of  persons,  of  place, 
which  may  combine  to  give  them  such  character." 

Count  Sclopis  explains  the  force  of  the  Decision  as 
follows : 

"  Quant  a  la  question  de  1'approvisionnement  et  du  charge- 
men  t  de  charbon,je  ne  saurais  la  trailer  que  sous  le  point  de 


182  THE  TREATY  OF  WASHINGTON. 

vue  d'un  cas  connexe  avec  1'usage  d'une  base  d'operations  na- 
vales  dirigees  centre  Fun  des  Belligerants,  ou  cVun  cas  flagrant 
de  contrabande  de  guerre.  Je  ne  dirai  pas  que  le  simple  fait 
d'avoir  alloue  une  quantite  de  charbon  plus  forte  que  celle  ne- 
cessaire  aux  vaisseaux  pour  regagner  le  port  de  leur  pays  le  plus 
voisin,  constitue  a  lui  seul  un  grief  suffisant  pour  donner  lieu  a 
une  indemnite.  Ainsi  que  le  disait  le  Chancelier  d'Angleterre, 
le  12  Juin,  1871,  a  la  Chambre  des  Lords,  1'Angleterre  et  les 
Etats  Unis  se  tiennent  egalement  attaches  au  principe  pratique 
qu'il  n'y  a  pas  violation  du  droit  des  gens  en  fournissant  des 
armes  aux  Belligerants.  Mais  si  cet  excedant  de  proportion 
dans  1'approvisionnement  de  charbon  vient  se  joindre  a  d'autres 
circonstances  qui  marquerit  qu'on  s'en  est  servi  comme  d'une 
veritable  res  hostilis,  alors  il  y  a  infraction  a  la  deuxieme  Regie 
de  1' Article  VI.  du  Traite.  C'est  dans  ce  sens  aussi  que  le  meme 
Lord  Chancelier  expliquait  dans  le  discours  precite  la  portee 
de  la  derniere  parte  de  la  dite  Regie." 

The  same  point  is  treated  by  Mr.  Adams  as  fol 
lows  : 

"  The  supply  of  coals  to  a  Belligerent  involves  no  responsi 
bility  to  the  Neutral,  when  it  is  made  in  response  to  a  demand 
presented  in  good  faith,  with  a  single  object  of  satisfying  a  le 
gitimate  purpose,  openly  assigned. 

"  On  the  other  hand,  the  same  supply  does  involve  a  respon 
sibility  if  it  shall  in  any  way  be  made  to  appear  that  the  con 
cession  was  made,  either  tacitly  or  by  agreement,  with  a  view 
to  promote  or  complete  the  execution  of  a  hostile  act. 

"  Hence  I  perceive  no  other  way  to  determine  the  degree  of 
the  responsibility  of  a  Neutral  in  these  cases,  than  by  an  exam 
ination  of  the  evidence  to  show  the  intent  of  the  grant  in  any 
specific  case.  Fraud  or  falsehood  in  such  a  case  poisons  every 
thing  it  touches.  Even  indifference  may  degenerate  into  will 
ful  negligence,  and  that  will  impose  a  burden  of  proof  to  excuse 
it  before  responsibility  can  be  relieved." 

Mr.  Adams,  it  will  be  noted,  dwells  on  the  ques 
tion  of  intent  in  this  matter,  as  he  does,  indeed,  in 


ALABAMA   CLAIMS.  1S3 

each  one  of  his  opinions,  to  the  contrary  of  the  line 
of  reasoning  followed  by  the  British  Arbitrator. 

Finally,  in  assenting  to  the  Decision,  the  Viscount 
of  Itajubd  remarked  that, "  with  regard  to  the  supply 
of  coal,  he  is  of  opinion  that  every  Government  is 
free  to  furnish  to  the  Belligerents  more  or  less  of 
that  article." 

Thus,  the  tenor  of  the  Decision  of  the  Tribunal, 
and  the  commentaries  of  the  Arbitrators  thereon, 
combine  to  show  that  the  second  Rule  can  not  have 
the  effect  ascribed  to  it  by  Count  von  Beust. 

Besides  which,  the  latter  greatly  errs  in  supposing 
that  the  numerous  naval  stations  possessed  by  Great 
Britain  in  different  parts  of  the  globe  give  to  her  so 
much  advantage  to  the  prejudice  of  other  maritime 
Powers.  She  pays  dearly  for  such  benefits  as  she 
herself  derives  from  those  establishments,  in  the  cost 
of  maintaining  them,  whether  in  peace  or  in  war; 
and  if,  while  in  a  state  of  neutrality  herself,  she  re 
fuses  hospitality  to  others  [and  she  must  do  it  to  all, 
if  she  does  to  one],  she  forces  other  Powers  to  ac 
quire  similar  establishments  to  be  conducted  with 
equal  exclusiveness,  or  she  is  constrained  to  incur  the 
risk  of  the  charge  of  partiality  as  between  several 
Belligerents.  Hence,  it  is  not  for  the  interest  of  oth 
er  Powers  to  overstretch  the  responsibilities  of  Great 
Britain  in  this  respect ;  and  it  is  for  her  interest  to 
deal  justly  'and  impartially  with  such  other  Powers. 

Great  Britain  was  not  condemned  by  the  Tribunal 
because  of  the  supply  of  coals  to  Confederate  cruisers 
in  her  Colonial  ports,  nor  merely  because  those  cruis- 


184  ,       THE  TREATY   OF  WASHINGTON. 

ers  were  permitted  to  pervert  the  privilege  of  hospi 
tality  into  making  a  base  of  operations  of  Nassau  or 
of  Melbourne.  The  recognized  fault  in  the  matter 
of  the  Slienandoali  was  mainly  the  augmentation  of 
her  crew  at  Melbourne,  and  the  addition  of  equip 
ments,  without  which  she  could  not  have  operated  as 
a  cruiser  in  the  North  Pacific.  In  the  case  of  the 
Alabama,  and  especially  that  of  the  Florida,  the 
fault  was  in  allowing  them  to  come  and  go  unmolest 
ed,  and  even  favored,  in  the  Colonial  ports,  when  the 
British  Government  could  no  longer  pretend  to  be 
ignorant  of  their  originally  illegal  character,  nay, 
when  it  was  now  fully  aware  of  what  Mr.  Adams 
calls  the  "  continuous,  persistent,  willful,  flagrant  false 
hood  and  perjury,"  and  the  "  malignant  fraud,"  which 
attended  the  equipment  of  the  Confederate  cruisers 
in  Great  Britain.  It  was  this  class  of  facts,  and  not 
any  such  secondary  consideration  as  the  supply  of 
coal,  which  turned  the  scale  against  Great  Britain  in 
the  opinions  of  the  Arbitrators. 

No :  neither  the  Treaty  of  Washington,  with  its 
Eules,  nor  the  Decision  of  the  Tribunal  of  Geneva, 
has  inaugurated  any  new  policy  of  neutrality  in  the 
United  States,  nor  created  for  them  any  rights  or 
any  duties  not  previously  possessed  by  and  incum 
bent  on  the  Government. 

WHAT  THE  UNITED  STATES  HAVE  GAINED  BY  THE  AWARD. 

What,  then,  it  may  be  asked,  have  the  United 
States  gained  by  the  Treaty  of  Washington,  and  by 
the  Arbitration  h 


ALABAMA   CLAIMS.  1S5 

We  have  gained  the  vindication  of  our  rights  as 
a  Government ;  the  redress  of  the  wrong  done  to  our 
citizens ;  the  political  prestige,  in  Europe  and  Amer 
ica,  of  the  enforcement  of  our  rights  against  the  most 
powerful  State  of  Christendom;  the  elevation  of 
maxims  of  right  and  of  justice  into  the  judgment-seat 
of  the  world;  the  recognition  of  our  theory  and  poli 
cy  of  neutrality  by  Great  Britain ;  the  honorable  con 
clusion  of  a  long-standing  controversy  and  the  ex 
tinction  of  a  cause  of  war  between  Great  Britain  and 
the  United  States ;  and  the  moral  authority  of  hav-  ( 
ing  accomplished  these  great  objects  without  war,  by  j 
peaceful  means,  by  appeals  to  conscience  and  to  rea 
son,  through  the  arbitrament  of  a  hio-h  international 

o  o 

Tribunal. 

That  war,  the  great  curse  and  scourge  of  mankind, 
will  utterly  cease  because  of  the  present  successful 
instance  of  international  arbitration,  nobody  pretends. 
Questions  of  national  ambition  or  national  resent 
ment, — conflicts  of  dynastic  interest, — schemes  of  ter 
ritorial  aggrandizement, — nay,  deeper  causes,  resting 
in  superabundant  population  or  other  internal  facts 
of  malaise,  misery  and  discontent, — will  continue  to 
produce  wars  to  the  end  of  time. 

"  Non,  sans  doute,"  says  M.  de  Mazade, — speaking  of  the 
acts  of  the  Tribunal, — "  la  guerre  n'est  point  bannie  de  ce 
monde,  elle  n'est  pas  remplacee  par  un  tribunal  de  concilia 
tion  faisant  rentrer  au  fourreau  les  epees  impatientes  d'en  sor- 
tir:  ce  n'est  pas  moius  un  evenement  caracteristique  et  heu- 
reux  qne  le  succes  de  ce  tribunal  d'equite,  de  cette  sorte  de  jus 
tice  internationale."  .  .  . 

We,  Great  Britain  and  the  United  States,  have  in 


186  THE   TREATY   OF  WASHINGTON. 

this  matter  shown  that  even  a  question  affecting,  or 
supposed  to  affect,  national  honor,  may  be  settled  by 
arbitration ;  and  if  we  have  not  effected  the  establish 
ment  of  international  arbitration  as  the  universal 
substitute  for  war,  we  have  co-operated  to  prove  by 
our  example  that  the  largest  possible  questions  be 
tween  contending  Governments  are  susceptible  of 
being  settled  by  peaceful  arbitration.  As  Lord  Rip- 
on  truly  says,  in  so  doing,  we  have  taken  a  great 
step  in  the  direction  of  the  dearest  of  all  earthly 
blessings-,  the  blessing  of  peace. 

Let  us  hope  that  other  nations  may  follow  in  our 
footsteps.  Great  Britain,  to  her  honor  be  it  said,  has 
been  true  in  this  respect  to  the  engagements  she  en 
tered  into  at  the  Conferences  of  Paris.  If  we  of  the 
British  race  are  more  capable  of  reasoning  in  the 
midst  of  passion  than  others,  then  ours  be  the  glory. 
In  all  this,  the  sacrifices  of  feeling  have  been  on 
the  side  of  Great  Britain.  We  owe  the  acknowledg 
ment  to  her,  in  all  sincerity.  Standing,  as  we  now 
do,  side  by  side,  with  every  cloud  of  offense  removed 
from  between  us, — two  peoples,  as  Mr.  Gladstone  has 
well  said,  on  whom  the  seal  of  brotherhood  has  been 
stamped  by  the  hand  of  the  Almighty  himself, — we 
may  proudly  point  in  unison  to  the  homage  we  have 
both  rendered  to  the  cause  of  peace  and  humanity 
in  the  hall  of  arbitration  at  Geneva. 


MISCELLANEOUS  CLAIMS.  137 


CHAPTER  m. 
MISCELLANEOUS   CLAIMS. 

TREATY  PROVISIONS. 

THE  Treaty  goes  on  to  provide,  in  Articles  XII.  to 
XVII.  inclusive,  that  all  claims  on  the  part  of  corpo 
rations,  companies,  or  private  individuals,  citizens  of 
the  United  States,  upon  the  Government  of  Great 
Britain,  arising  out  of  acts  committed  against  the 
persons  or  property  of  citizens  of  the  United  States, 
during  the  period  between  April  13, 1861,  and  April 
9, 1865,  inclusive,  not  being  claims  growing  out  of  the 
acts  of  the  vessels  referred  to  in  the  previous  articles 
of  the  Treaty ;  and  all  claims,  with  the  like  excep 
tion,  on  the  part  of  corporations,  companies,  or  private 
individuals,  subjects  of  Great  Britain,  upon  the  Gov 
ernment  of  the  United  States,  arising  out  of  acts  com 
mitted  against  the  persons  or  property  of  subjects  of 
Great  Britain  during  the  same  period,  shall  be  refer 
red  to  three  Commissioners  to  be  appointed,  one  by 
each  of  the  two  Governments,  and  the  third  by  the 
two  Governments  conjointly:  these  Commissioners 
to  meet  at  Washington,  there  to  hear,  examine,  and 
decide  upon  such  claims  as  may  be  presented  to  them 
by  either  Government. 

The  stipulation,  it  will  be  perceived,  does  not  cover 


188  THE   TREATY   OF   WASHINGTON. 

all  existing  claims  of  citizens  or  subjects  of  the  one 
Government  against  the  other,  but  only  claims  for 
acts  committed  against  persons  or  property  on  either 
side  between  certain  defined  dates, — that  is,  durino; 

'  /  O 

the  pendency  of  actual  hostilities  in  the  United  States. 
It  is  a  provision,  supplementary  in  effect  to  the  pre 
ceding  clauses  of  the  Treaty,  conceived  in  the  appar 
ent-intention  of  thus  closing  up  all  subjects  of  conten 
tion  growing  out  of  our  Civil  War. 

The  Commission  was  duly  organized  by  the  ap 
pointment  of  Mr.  Russell  Gurney,  Commissioner  on 
the  part  of  Great  Britain,  and  Mr.  James  S.  Frazer, 
on  the  part  of  the  United  States,  and  of  Count  Corti, 
Envoy  Extraordinary  and  Minister  Plenipotentiary 
of  Italy,  Commissioner  named  conjointly  by  the  two 
Governments. 

The  Treaty  contains  detailed  provisions  for  the 
prosecution  of  the  business  before  the  Commission,  to 
be  completed  within  two  years  from  the  day  of  their 
first  meeting;  and  the  contracting  parties  engage  to 
consider  the  decision  of  the  Commissioners  absolutely 
final  and  conclusive  on  each  claim  decided  by  them, 
— to  give  full  effect  to  such  decision  without  any  ob 
jection,  evasion,  or  delay  whatsoever, — and  to  consid 
er  every  claim  comprehended  within  the  jurisdiction 
of  the  Commissioners  as  finally  settled,  barred,  and 
thenceforth  inadmissible,  from  and  after  the  conclu 
sion  of  the  proceedings  of  the  Commission. 

The  Commissioners  assembled  at  Washington  on 
the  26th  of  September,  1871,  and  are  assiduously  en 
gaged  in  the  determination  of  the  claims  submitted 


MISCELLANEOUS   CLAIMS.  1S9 

in  conformity  with  the  Treaty,  having  before  them  as 
Agent  for  the  United  States,  Mr.  Robert  S.  Hale ;  as 
Agent  for  Great  Britain,  Mr.  Henry  Howard;  with 
Mr.  James  M.  Carlisle  as  Counsel,  and  Mr.  Thomas  C. 
Cox,  Secretary  to  the  Commission. 

The  Commission  will  undoubtedly  complete  its  du 
ties  within  the  time  prescribed  by  the  Treaty. 

PRIVATE   CLAIMS   ON   GOVERNMENTS. 

The  intimate  relation,  which  exists  between  the 
different  States  of  Christendom  at  the  present  time, 
has  resulted  in  the  necessity  of  providing  special 
means  for  adjudicating  the  private  claims  of  the  citi 
zens  or  subjects  of  one  Government  against  another. 
It  is  one  of  the  incidents  of  the  gradual  tendency  of 
modern  nations  to  substitute  reason  for  force,  and  ar 
bitration  for  war. 

The  subject  has  not  yet  obtained  from  publicists 
and  legislators  the  attention  which,  by  reason  of  its 
great  practical  importance,  and  its  intrinsic  interest 
as  an  element  of  civilization,  it  deserves.  It  may 
well  receive  consideration  here,  both  in  itself  and  in 
its  relation  to  other  congenial  stipulations  of  the 
Treaty  of  Washington. 

All  the  Powers  of  Christian  Europe  and  America 
are  of  accord,  and  stipulate  in  their  treaties  of  amity 
and  commerce,  to  permit  to  one  another's  subjects 
free  ingress,  residence,  sojourn,  and  traffic  in  their 
respective  territories,  on  the  same  footing  with  the 
inhabitants  thereof,  and  with  subjection  to  the  laws 
of  the  land,  more  or  less  complete,  according  to  local 


190  THE   TREATY   OF   WASHINGTON. 

regulations  and  to  the  tenor  of  treaties.  Total  exemp 
tion  from  the  local  law  is  maintained  only  by  the 
subjects  of  Christian  States  in  countries  outside  of 
Christendom. 

In  most  of  the  countries  of  Christendom  foreigners 
are  protected  in  their  personal  rights  equally  with 
the  inhabitants,  and,  if  wronged,  have  access  to  the' 
tribunals  for  redress,  even  against  injuries  by  the  lo 
cal  Government  itself. 

Generally,  indeed,  it  may  be  said,  with  truth,  that 
the  rights  of  a  foreigner  are  better  protected  than 
those  of  the  inhabitants  of  the  country  itself;  for,  in 
addition  to  the  tribunals  of  the  country  where  he  so 
journs,  the  foreigner  has  the  benefit  of  the  Minister 
and  Consuls  of  his  own  country. 

Of  this  favor  the  foreigner  has  occasional  need,  it 
is  true;  but  it  is  a  privilege  susceptible  of  great 
abuse,  by  reason  of  the  extravagant  pretensions  occa 
sionally  made  by  persons  who  may  suffer  any  real  or 
apparent  wrong,  and  who  are  prone  to  elevate  trivial 
grievances  into  international  questions,  to  the  annoy 
ance  of  all  Governments,  and  to  the  peril  of  the  pub 
lic  peace.  Most  of  such  subjects  of  complaint  are 
capable  of  being  settled  by  the  local  tribunals,  and 
ought  to  be.  The  laws  of  Rome  lie  at  the  founda 
tion  of  the  jurisprudence  of  all  Europe  and  America 
alike;  the  forms  of  judicial  administration  are  sub 
stantially  similar  in  all  the  States  of  both  Continents; 
and  in  many  of  the  cases  of  alleged  wrong  to  foreign 
ers,  and  of  call  for  diplomatic  intervention,  the  affair 
is  one  which,  if  at  home  in  his  own  country,  the  party 


MISCELLANEOUS  CLAIMS.  191 

would  never  dream  of  withdrawing  from  the  courts 
of  law  to  make  the  alleged  injury  a  subject  of  claim 
against  his  Government.  And  it  would  greatly  tend 
to  the  harmony  of  States  and  the  peace  of  the  world, 
if  treaty  stipulations  were  entered  into  in  order  to  di 
minish  the  extent  and  restrain  the  frequency  of  such 
private  claims  on  foreign  Governments. 

In  the  present  condition  of  things,  every  Govern 
ment  is  forced  by  private  importunity  into  becoming 
too  often  the  mere  attorney  of  the  claims  of  its  citi 
zens  against  foreign  Governments,  in  matters  where 
the  party  aggrieved,  if  aggrieved,  has  ample  means  of 
redress  before  the  tribunals,  and  where  his  grievance 
does  not  in  the  slightest  degree  affect  the  honor  of  his 
own  Government. 

These  observations  apply  especially  to  incidents 
occurring  in  times  of  peace,  in  which  times  the  acts  of 
willful  injury,  done  by  any  Government  to  foreigners 
sojourning  under  its  treaty  protection,  are  few  in 
number  compared  with  the  injuries  done  to  its  own 
subjects  or  citizens,  by  any,  the  best  administered 
Government  either  of  Europe  or  America.  On  such 
occasions,  the  injured  party  not  seldom  exaggerates 
his  case,  and,  by  appeals  to  the  sentiment  of  citizen 
ship  in  his  own  country,  seeks  to  force  his  Govern 
ment  to  interpose  in  his  behalf,  so  as  to  obtain  for  him 
summary  redress  by  diplomatic  .means  in  disregard 
of  the  local  law. 

Meanwhile,  in  times  of  war,  the  resident  or  sojourn- 

.  ing  foreigner  is  still  more  solicitous  to  be  exempt  from 

"those  ordinary  consequences  of  military  operations  to 


192  THE   TREATY   OF  WASHINGTON. 

which  the  inhabitants  of  the  country  are  subject,  and 
his  solicitude  is  in  proportion  to  the  injuries  to  which 
he  is  thus  exposed.  This  fact  became  conspicuous 
in  the  late  war  between  Germany  and  France,  and  led 
to  many  complaints  on  the  part  of  British  subjects 
voluntarily  residing  at  the  seat  of  war,  which4  con 
strained  Lord  Granville  to  disabuse  them  of  the  idea 
that  armies  in  the  field  were  to  fold  their  arms  and 
cease  to  act,  lest  by  chance  they  might,  in  the  heat  of 
action,  disturb  the  peace  of  mind,  or  damage  the  prop 
erty  or  person,  of  some  commorant  Englishman. 

Incidents  of  this  nature  are  most  of  all  frequent  in 
times  of  civil  war,  especially  in  those  countries  of 
Spanish  America,  where  militarism  prevails,  and  the 
regular  march  of  civil  institutions  is  interrupted  by 
military  factions  headed  by  generals,  in  contention 
with  one  another,  and  with  the  constituted  authorities 
of  the  Government. 

For  injuries  thus  done  to  its  subjects,  residing  or 
sojourning  in  a  foreign  country,  every  Government 
possesses  of  course  the  right  of  war  or  of  reprisals, 
which,  in  effect,  is  the  same  thing,  being  the  adoption 
of  force  as  a  remedy  in  lieu  of  reason :  a  method  of 
redress  for  private  injuries,  which,  however  common 
formerly,  is  contrary  to  all  the  prevalent  notions  of 
international  justice  in  our  day. 

Hence,  while  it  is  the  right  and  duty  of  every  Gov 
ernment  to  interpose  on  proper  occasion,  through  its 
Ministers  or  Consuls,  or  otherwise,  on  the  happening 
of  any  injury  to  its  citizens  or  subjects  abroad,  yet 
the  recurrence  to  force  as  a  means  of  redress  is  ad  mis- 


MISCELLANEOUS  CLAIMS.  193 

sible  only  in  very  rare  and  exceptional  cases  of  ag 
gravated  wrong  committed  by  the  authorities  of  the 
foreign  Government. 

The  Government  aggrieved  in  the  person  of  its 
subject  obtains,  in  many  cases,  the  redress  of  the  par 
ticular  injury  by  more  or  less  earnestness  of  diplo 
matic  remonstrance. 

If,  however,  redress  be  delayed  for  some  sufficient 
cause  to  excuse  the  delay,  and  cases  of  alleged  injury 
are  thus  accumulated,  indemnity  for  the  injuries  done 
will  be  procured  by  diplomatic  negotiation,  if  the  in 
jured  Government  be  patient  and  persistent;  for, 
much  as  there  may  be  of  evil  in  the  world,  and  fre 
quently  as  nations  depart  on  occasion  from  the  rule 
of  right,  yet,  after  all,  the  sense  of  justice  among  men 
and  the  conscience  of  nations  prevail  to  such  extent 
that,  in  the  end,  in  most  cases,  mere  appeals  to  reason 
suffice  to  obtain  voluntary  reparation  at  the  hands  of 
the  injuring  Government. 

Thus,  without  war,  and  without  threat  of  war,  the 
United  States  have  obtained,  by.  treaty,  payment  of 
indemnity,  for  injuries  to  citizens  of  the  United  States, 
from  other  Governments,  such  as  France,  Denmark, 
the  Two  Sicilies,  Spain,  with  provision  for  the  distri 
bution  of  such  indemnity,  among  our  citizens,  by  our 
selves,  through  the  agency  of  commissioners  appointed 
under  Act  of  Congress. 

USEFULNESS  OF  MIXED  COMMISSIONS. 

In  other  controversies  of  this  class  between  the 
United  States  and  foreign  Governments,  where  agree- 

N 


194  THE  TREATY  OF  WASHINGTON. 

merit  as  to  the  nature  of  the  injury  or  amount  of 
the  indemnity  could  not  be  arrived  at,  mixed  commis 
sions  have  been  established  by  treaty  in  numerous  in 
stances,  to  judge  and  decide  the  questions  at  issue  be 
tween  the  two  contending  Governments. 

On  three  several  occasions,  within  a  brief  period, 
the  United  States  and  Great  Britain  have  had  re 
course  to  the  international  tribunal  of  a  mixed  com 
mission  for  settlement  of  unliquidated  claims  of  citi 
zens  or  subjects  of  one  country  against  the  Govern 
ment  of  the  other,  namely,  by  the  Treaty  of  July  26, 
1853;  by  that  of  July  1, 1863;  and  by  the  present 
Treaty  of  Washington.  Other  examples  of  this  occur 
in  our  earlier  history.  And  the  United  States  have 
had  treaties  of  a  similar  character  with  the  Mexican 
Republic,  with  the  Republic  of  New  Granada,  with 
that  of  the  United  States  of  Colombia,  and  with  the 
Republics  of  Costa  Rica,  Venezuela,  and  Peru. 

An  eminent  French  publicist,  M.  Pradier  Fodere, 
observes : 

"  L' arbitrage,  tres-usite  dans  le  moy en-age,  a  ete 
presque  entierement  neglige  dans  les  temps  modernes; 
les  exemples  d'arbitrage  offerts  et  acceptes  sont  deve- 
nus  de  plus  en  plus  rares,  par  1'experience  des  incon- 
venients  qui  semblent  etre  presque  inseparables  de  ce 
moy  en,  ordinairement  insuffisant  par  le  defaut  d'un 
pouvoir  sanctionnateur.  Lorsque  les  grandes  puissan 
ces  constituent  un  tribunal  arbitral,  ce  n'est  ordinaire 
ment  que  pour  des  objets  d'interet  secondaire." 

As  to  the  absence  of  any  power  to  compel  observ 
ance  of  the  award  of  an  international  tribunal,  it  may 


MISCELLANEOUS  CLAIMS.  195 

suffice  to  say  that  the  "pouvoir  sanctionnateur"  is  in 
the  treaty  of  arbitration,  which  nations  are  quite  as 
likely  to  observe  as  they  are  to  observe  any  other 
treaty.  It  is  that  question  of  good  faith  among  na 
tions  upon  which  the  peace  of  the  world  stands. 

Undoubtedly,  cases  occur  in  which  the  internation 
al  discord  or  debate  turns  on  questions  where  the  na 
tional  honor  or  dignity  is  directly  in  play,  and  where 
the  controversy  becomes  a  matter  of  personal  senti 
ment;  and  in  such  cases  it  may  not  be  easy  to  ob 
tain  an  agreement  to  arbitrate.  Such,  indeed,  was  the 
view  of  Earl  Russell,  as  we  have  already  seen,  with 
reference  to  the  imputed  want  of  due  diligence  of  the 
British  Government  in  the  matter  of  the  Alabama 
and  the  Florida.  But  the  influence  of  time,  which 
softens  sensibilities  and  resentments,  and  the  preva 
lence  at  length  of  the  mutual  desire  of  peace,  may 
overcome  even  the  most  serious  apparent  obstacles 
to  friendly  arbitration,  as  the  conduct  of  Great  Brit 
ain  in  expressing  her  regret  for  the  incidents  of  which 
the  United  States  complained,  and  in  referring  the 
whole  subject  to  the  Tribunal  at  Geneva,  seems  to 
demonstrate. 

OTHER  FORMS  OF  ARBITRATION. 

Many  instances  have  occurred  in  the  present  centu 
ry  of  another  form  of  arbitration,  differing  materially 
from  mixed  commissions,  namely,  submission  to  a  sin 
gle  arbiter  or  tribunal,  with  complete  authority  to 
decide  the  subject  of  controversy. 

Thus,  in  1851, France  and  Spain  referred  to  the  ar- 


196  THE  TREATY   OF  WASHINGTON. 

bitration  of  the  King  of  the  Netherlands  the  question 
of  responsibility  for  certain  prizes,  an  incident  of  the 
intervention  of  France  in  the  affairs  of  Spain  in  the 
time  of  Ferdinand  VII.  In  1827,  Great  Britain  and 
the  United  States  referred  a  question  of  boundary  to 
the  King  of  the  Netherlands.  In  1843,  France  and 
England  submitted  a  question  of  indemnities  claimed 
by  British  subjects  to  the  King  of  Prussia.  In  1844, 
France  and  Mexico  submitted  a  similar  question  to 
the  Queen  of  Great  Britain.  In  1852,  the  United 
States  and  Portugal  submitted  to  the  Emperor  of  the 
French  the  question  of  the  responsibility  of  Portugal 
for  the  destruction  of  an  American  letter-of-marque 
by  the  English  in  the  port  of  Fayal.  In  1858,  the 
United  States  and  Chile  submitted  a  question  of  pri 
vate  loss  to  the  decision  of  the  King  of  the  Belgians. 
In  1862,  a  difference  between  some  English  officers 
and  local  Brazilian  authorities  was  submitted  to  the 
arbitration  of  the  King  of  the  Belgians  by  Great 
Britain  and  Brazil.  In  1867,  Great  Britain  and  Port 
ugal  submitted  a  question  of  territory  to  the  decision 
of  the  United  States.  In  1870,  Brazil  and  the  United 
States  referred  a  question  of  damages  to  the  decision 
of  Sir  Edward  Thornton,  the  British  Minister.  In 
1864,  Great  Britain  and  Peru  submitted  a  question 
of  private  claims  to  the  judgment  of  the  Senate  of 
the  free  city  of  Hamburg. 

We  shall  presently  have  to  speak  of  a  fact  of  the 
same  class  in  the  question  referred  by  Great  Britain 
and  the  United  States  to  the  Emperor  of  Germany 
by  the  Treaty  of  Washington. 


MISCELLANEOUS  CLAIMS.  197 

One  of  the  earliest  of  our  conventions  of  this  nature 
was  contained  in  the  Treaty  of  1818,  in  execution  of 
an  article  of  the  Treaty  of  Ghent  [1815],  by  which 
the  United  States  and  Great  Britain  stipulated  to  re 
fer  a  certain  question  of  indemnities  to  some  friend 
ly  Sovereign  or  State.  Afterward  the  Emperor  of 
Russia  was  selected  as  such  arbitrator,  and  rendered 
an  award  against  Great  Britain,  in  general  terms,  by 
reason  of  which  it  became  necessary  to  provide  by  a 
second  treaty  [1822]  for  the  appointment  of  a  com 
missioner  and  arbitrator  on  the  part  of  the  United 
States,  and  a  commissioner  and  arbitrator  on  the  part 
of  Great  Britain,  to  assemble  at  Washington  and  as 
sess  damages  under  the  umpirage  of  the  Minister  of 
the  mediating  Power  accredited  to  the  United  States. 
This  example  is  curious  and  instructive,  seeing  that 
the  debtor  Government,  so  to  speak, — Great  Britain,— 
in  order  to  give  effect  to  its  engagement  at  Ghent 
entered  into  three  successive  international  compacts 
with  the  United  States, — one  to  appoint  an  arbiter, 
another  to  name  him,  and  a  third  to  give  effect  to  his 
award.  There  could  be  no  better  illustration  of  the 
moral  force  of  treaties  of  arbitration  in  the  estimation 
of  modern  States. 

TENDENCY    OF   REASON   AND    JUSTICE    TO    PREVAIL    OVER 

FORCE. 

These  many  examples,  it  seems  to  me,  tend  to  man 
ifest  the  increasing  desire  of  modern  nations  to  ter 
minate  all  their  controversies,  if  possible,  by  friendly 
means  rather  than  by  force.  Where  they  can  not 


198  THE  TREATY   OF  WASHINGTON. 

agree  between  themselves,  they  establish  a  mixed 
commission  or  appoint  an  arbitrator  or  arbitrators. 
On  such  occasions  the  contending  parties  do  not  se 
lect  an  arbitrator  in  consideration  of  his  being  power 
ful,  like  an  Emperor  of  the  French  or  an  Emperor  of 
Germany,  but  because  of  confidence  in  the  impartial 
ity  of  the  arbiter,  as  when  great  States  refer  a  ques 
tion  to  relatively  feeble  Sovereigns,  like  the  King  of 
the  Netherlands  or  the  King  of  the  Belgians,  or  to 
the  Senate  of  a  little  Republic  like  Hamburg,  or  even 
to  five  individual  judges,  like  the  Arbitrators  of  Ge 
neva,  or  to  a  single  person  like  Sir  Edward  Thornton. 
Nay,  in  further  proof  of  the  availableness  of  this 
method  of  settling  national  disputes,  we  have  Great 
Britain  and  the  United  States,  in  spite  of  their  own 
particular  quarrel,  each  trusting  the  other  in  a  ques 
tion  between  either  of  them  and  another  Power. 

The  same  disposition  of  mind  on  the  part  of  mod 
ern  Governments,  that  is,  the  assumption  that  a  se 
lected  international  judge  or  arbitrator  will  decide 
impartially,  whether  he  be  powerful  or  weak,  and  of 
whatever  nationality  he  may  be,  appears  in  the  con 
stitution  of  mixed  commissions.  Generally  these 
commissions  consist  of  two  commissioners,  one  ap 
pointed  by  each  of  the  respective  Governments,  with 
authority  given  to  the  commissioners  to  select  an  um 
pire  to  determine  any  differences  wThich  may  arise  be 
tween  them;  or  sometimes  the  umpire  is  agreed  on 
by  the  two  Governments. 

Now,  in  the  very  heat  of  our  late  controversies  with 
Great  Britain,  we  consented  to  accept  the  British 


MISCELLANEOUS  CLAIMS.  199 

Minister,  Sir  Frederic  Bruce,  as  umpire  between  us 
and  the  United  States  of  Colombia.  And  at  the  same 
period  of  time,  Great  Britain  accepted  Mr.  B.R  Curtis, 
of  Massachusetts,  as  umpire  under  the  Treaty  for  set 
tling  the  claims  of  the  Hudson's  Bay  Company  against 
the  United  States.  And  in  this  case,  be  it  remember 
ed,  the  Commissioners,  just  men  both,  Sir  John  Kose 
and  Mr. Alexander  S.Johnson,  agreed  on  their  award 
without  troubling  Mr.  Curtis. 

Under  the  previous  claims'  Treaty  between  Great 
Britain  and  the  United  States,  the  two  Governments 
in  the  first  instance  agreed  on  ex-President  Van  Buren 
as  umpire,  and,  on  his  declining,  they  chose  Mr.  Bates, 
an  American  Banker  residing  in  London. 

Under  the  claims' Treaty  between  the  United  States 
and  New  Granada,  an  American,  Mr.  Upham,  of  New 
Hampshire,  was  umpire ;  and  another  American,  Dr. 
Francis  Lieber,  of  New  York,  under  the  recent  Treaty 
between  the  United  States  and  the  Mexican  Eepublic. 

Strongest  of  all  is  the  case  of  the  Treaty  between 
Paraguay  and  the  United  States,  which  submitted 
their  controversy  to  an  American  citizen,  Mr.  Cave 
Johnson,  of  Tennessee,  as  sole  arbiter,  and  he  decided 
against  the  United  States. 

Is  it  possible  to  misapprehend  the  moral  of  such 
facts  ?  In  all  these  various  aspects  of  the  subject,  do 
we  not  perceive  the  sense  of  justice  tending  every 
day  to  penetrate  deeper  and  deeper  into  the  councils 
of  nations,  and  the  voice  of  reason,  of  which  interna 
tional  law  is  the  expression,  influencing  more  and 
more  the  action  of  Governments  ? 


200  THE   TREATY   OF  WASHINGTON. 

THEORY   OF  ARBITRATION. 

Sovereign  States,  it  has  been  said,  should  be  trust 
ed  to  do  justice  spontaneously,  and  without  humbling 
themselves  to  be  judged  by  an  arbitrator.  It  might 
with  just  as  good  reason  be  said  that  all  men  should 
be  trusted  to  do  justice  spontaneously,  and  without 
humbling  themselves  to  be  judged  by  a  tribunal. 
The  experience  of  mankind  contradicts  each  of  these 
propositions.  Diverse  views  of  the  facts,  and  of  the 
rules  of  right  applicable  to  the  facts,  to  say  nothing 
of  prejudice,  passion,  pride  of  opinion,  are  inseparable 
from  human  affairs,  because  they  are  conditions  of 
the  human  mind,  influencing  the  actions  as  well  of 
men  in  political  society  as  of  individual  men.  Ad 
mit  that  in  a  majority  of  cases  reason  will  prevail  to 
prevent  or  to  settle  controversies  between  individual 
persons ;  but  reason  does  not  suffice  in  all  cases,  and 
it  is  for  such  exceptional  cases  that  tribunals  of  jus 
tice  exist,  without  which,  in  the  attempt  of  men  to 
right  themselves,  society  would  be  dissolved  into  a 
state  of  anarchy  and  bloodshed.  The  considerations 
which  recommend  the  establishment  of  tribunals  hav 
ing  authority  as  such  within  the  limits  of  each  sov 
ereign  State,  are  still  more  cogent  when  applied  to 
sovereign  States  themselves,  which,  having  no  com 
mon  superior,  must  of  necessity  determine  their  dif 
ferences  by  war,  unless  they  accept  the  mediation  of 
some  friendly  Power  to  restore  concord  between  them, 
or  unless  they  recur  to  arbitration,  by  mutual  consent, 
in  one  form  or  another  according  to  circumstances,  as 


MISCELLANEOUS  CLAIMS.  201 

the  United  States  and  Great  Britain  have  done  by  the 
Treaty  of  Washington. 

So  many  examples  of  arbitration  between  Govern 
ments,  within  a  recent  period,  contribute  to  prove  that 
M.  Pradier  Fodere  errs  in  assuming  that  in  our  day 
"  offers  of  arbitration  made  and  accepted  are  becoming 
more  and  more  rare."  On  the  contrary,  this  method 
of  terminating  national  differences  may  now  be  re 
garded  as  permanently  fixed  in  the  international  juris 
prudence  of  Europe  and  America. 

WISDOM  OF  THE   PRESENT  MIXED   COMMISSION. 

I  conclude,  therefore,  that  the  United  States  act 
ed  wisely  in  submitting  the  claims  of  British  sub 
jects  to  a  mixed  commission  by  the  Treaty  of 
Washington. 

Some  persons  in  the  United  States,  with  disposi 
tion  to  criticise  the  Treaty  of  Washington,  have  sug 
gested  that  this  Commission  may  result  in  finding  a 
large  balance  of  many  millions  due  from  the  United 
States  to  Great  Britain. 

I  think  the  supposition  is  altogether  gratuitous, 
and  that  no  such  considerable  balance  will  be  found 
to  be  due.  If  it  should  be  so,  however,  the  fact  will 
in  no  sort  detract  from  the  credit  belonging  to  the 
Treaty.  If  the  Government  of  the  United  States,  in 
the  course  of  its  efforts  to  suppress  insurrection,  shall 
have  done  injury  to  the  subjects  of  Great  Britain  for 
which  we  are  justly  responsible  by  the  law  of  nations, 
it  is  altogether  proper  that  we  should  pay  whatever 
indemnity  therefor  may  be  found  due  by  the  jndg- 


202  THE   TREATY   OF  WASHINGTON. 

ment  of  a  lawfully  constituted  international  tribunal, 
such  as  the  present  Commission. 

Citizens  of  the  United  States  are  not  slow  to  in 
voke  the  intervention  of  their  Government  in  behalf 
of  any  American  injured  in  the  progress  of  civil  war 
in  other  countries,  and  on  such  occasions  to  talk  loud 
ly  of  "  outrages  to  citizens :"  let  us  do  as  we  would 
be  done  by,  and  concede  that  Great  Britain  is  entitled 
to  judicial  examination  of  the  cases  of  her  subjects 
alleging  injury  by  the  occurrences  of  civil  war  in  the 
United  States. 


THE  NORTHWESTERN  BOUNDARY -LINE.  203 


CHAPTER  IV. 

THE  NORTHWESTERN  BOUNDARY -LINE. 

PROVISIONS  OF  THE  TREATY. 

THE  Articles  of  the  Treaty  from  XXXIV.  to  XLII. 

inclusive  dispose  of  the  long -standing  dispute  be 
tween  the  United  States  and  Great  Britain  regarding 
the  true  water-line  by  which  the  Territory  of  Wash 
ington  is  separated  from  Vancouver's  Island. 

The  subject  of  the  controversy,  and  the  agreement 
for  its  termination,  are  set  forth  as  follows : 

"  Whereas  it  was  stipulated  by  Article  I.  of  the  treaty  con 
cluded  at  Washington  on  the  loth  of  June,  1846,  between  the 
United  States  and  Her  Britannic  Majesty,  that  the  line  of 
boundary  between  the  territories  of  the  United  States  and  those 
of  Her  Britannic  Majesty,  from  the  point  on  the  forty-ninth 
parallel  of  north  latitude  up  to  which  it  had  already  been  as 
certained,  should  be  continued  westward  along  the  said  paral 
lel  of  north  latitude  '  to  the  middle  of  the  channel  which  sepa 
rates  the  continent  from  Vancouver's  Island,  and  thence  south 
erly,  through  the  middle  of  the  said  channel  and  of  Fuca  Straits, 
to  the  Pacific  Ocean ;'  and  whereas  the  Commissioners  appoint 
ed  by  the  high  contracting  Parties  to  determine  that  portion 
of  the  boundary  which  runs  southerly  through  the  middle  of 
the  channel  aforesaid,  were  unable  to  agree  upon  the  same ; 
and  whereas  the  Government  of  Her  Britannic  Majesty  claims 
that  such  boundary-line  should,  under  the  terms  of  the  treaty 
above  recited,  be  run  through  the  Rosario  Straits,  and  the  Gov 
ernment  of  the  United  States  claims  that  it  should  be  run 
through  the  Canal  de  Haro,  it  is  agreed  that  the  respective 


204  THE  TREATY  OF  WASHINGTON. 

claims  of  the  Government  of  the  United  States  and  of  the  Gov 
ernment  of  Her  Britannic  Majesty  shall  be  submitted  to  the 
arbitration  and  award  of  His  Majesty  the  Emperor  of  Germany, 
who,  having  regard  to  the  above-mentioned  Article  of  the  said 
Treaty,  shall  decide  thereupon,  finally  and  without  appeal, 
which  of  those  claims  is  most  in  accordance  with  the  true  in 
terpretation  of  the  Treaty  of  June  15,1846." 

Subsequent  articles  prescribe  that  the  question 
shall  be  discussed  at  Berlin  by  the  actual  diplomatic 
Representatives  of  the  respective  Governments,  either 
orally  or  by  written  argument,  as  and  when  the  Arbi 
trator  shall  see  fit,  either  before  the  Arbitrator  him 
self,  or  before  a  person  or  persons  named  by  him  for 
that  purpose,  and  either  in  the  presence  or  the  absence 
of  eitheii  or  both  Agents. 

A  previous  arrangement  in  a  treaty  negotiated  by 
the  Earl  of  Clarendon  and  Mr.  Johnson  for  referring 
the  subject  to  the  arbitration  of  the  President  of  the 
Swiss  Confederation  had  been  rejected  by  the  Senate 
of  the  United  States,  not  on  account  of  any  objection 
to  the  particular  arbitrator,  but  for  other  considera 
tions. 

There  is  good  cause  for  the  suggestion  of  Lord  Mil 
ton  that  the  Senate  of  the  United  States  considered 
our  "  right  to  the  disputed  territory  so  extremely  clear 
that  it  ought  not  to  be  submitted  to  arbitration." 
That,  indeed,  is  the  tenor  of  Senator  Howard's  speech 
on  the  subject,  the  publication  of  which  was  author 
ized  by  the  Senate.  Such  a  view  of  a  question  of 
right  may  be  admissible  on  the  part  of  a  private  in 
dividual,  who,  in  a  clear  case,  may  prefer  a  suit  at  law 
in  the  courts  of  his  country  to  arbitration ;  but  it  is 


THE  NORTHWESTERN  BOUNDARY  -  LINE.  205 

wholly  inapplicable  to  nations,  which,  if  they  can  not 
agree  and  will  not  arbitrate,  have  no  resource  left 
save  war. 

But  this  was  not  the  only  consideration  which  in 
duced  the  Senate  to  refuse  its  assent  to  that  treaty. 
There  were  objections  to  inform  of  submission. 

HISTORY   OF   THE   QUESTION. 

The  controversy  to  wrhich  these  treaties  refer  is  one 
of  the  leavings  of  the  last  wrar  between  the  United 
States  and  Great  Britain,  and  has  its  roots  far  back  in 
the  circumstances  of  the  primitive  colonization  of 
North  America  by  Europeans. 

When  the  Kings  of  the  little  island  of  Britain,  in 
virtue  of  some  of  their  subjects  having  coasted  along 
a  part  of  the  Atlantic  shores  of  America,  assumed  to 
concede  to  the  Colonies  of  Massachusetts  and  Virginia 
grants  of  territory  extending  by  parallels  of  latitude 
westward  to  the  Pacific  Ocean,  and  covering  the  un 
explored  immensity  of  the  Continent,  and  on  the  prem 
ises  of  sovereignty  and  jurisdiction  as  good  as  their 
title  to  the  manor  of  East  Greenwich  in  Kent, — it 
was  only  men's  universal  ignorance  of  geography 
which  saved  the  act  'from  the  imputation  of  wild  ex 
travagance. 

But  such  grants,  and  the  pretensions  on  which  they 
were  founded,  were  the  logical  consequence  of  the 
theories  of  colonization  and  conquest  pursued  in  the 
New  World  by  Spain,  Portugal,  and  France,  as  well 
as  England,  and  formed  the  basis  of  the  power  of 
Great  Britain  in  North  America,  and  eventually  of 


206  THE   TREATY   OF   WASHINGTON. 

that  of  the  United  States.  It  was  the  assumption 
that  discovery  by  any  European  State,  followed  by 
occupation  on  the  sea-coast,  carried  the  possessions 
of  such  State  indefinitely  landward  until  they  met 
the  possessions  of  some  other  European  State. 

At  the  same  time,  France  had  entered  into  America 
by  the  waters  of  the  St.  Lawrence,  had  ascended  that 
river  to  the  Lakes,  had  then  descended  by  the  Missis 
sippi  to  the  site  of  the  future  New  Orleans,  and  had 
thus  laid  the  foundation  of  a  title  not  only  to  the  ex 
plored  territories  watered  by  the  St.  Lawrence  or  in 
front  of  it  on  the  sea-coast,  but  also  to  undefined,  be 
cause  unknown,  regions  beyond  the  Mississippi. 

Hence  arose  the  first  great  questions  of  boundary 
in  North  America,  those  between  England,  France, 
and  Spain,  which  were  settled  by  the  Peace  of  Utrecht. 
France  retained  possession  of  the  territories  on  the 
St.  Lawrence  and  the  Mississippi ;  whilst  England 
retained  her  country  of  Hudson's  Bay  and  her  Prov 
inces  on  the  Atlantic  coast,  and  acquired  Nova  Scotia 
/and  Newfoundland.  [Treaty  of  Utrecht,  March  31- 
April  11, 1713.] 

Subsequently,  the  fortunes  of  war  made  England 
mistress  of  the  Canadian  and  coast  establishments  of 
France,  leaving  to  the  latter  only  the  territory  beyond 
the  Mississippi.     [Treaty  of  Fontainebleau,  Nov.  3,  / 
1762,  and  Treaty  of  Paris,  Feb.  10, 1763.] 

Meanwhile,  Spain  continued,  with  but  brief  inter 
ruption,  in  undisputed  sovereignty  of  the  two  Floridas, 
and  of  the  vast  provinces  of  New  Spain,  of  undefined 
extension  west  and  north  toward  the  Pacific. 


THE  NORTHWESTERN  BOUNDARY -LINE.  207 

Thus,  when  the  Thirteen  Colonies  obtained  inde 
pendence,  and  treated  for  the  partition  between  them 
and  Great  Britain  of  the  British  empire  in  America, 
each  took  the  part  of  which  they  respectively  held 
constructive  jurisdiction,  according  to  its  recognized 
limits  in  time  of  peace, — that  is  to  say,  Great  Britain 
retained  for  herself  the  territories  which  she  had  con 
quered  from  France,  and  relinquished  to  the  Thirteen 
Colonies  all  the  territory  which  she  had  theretofore 
claimed  as  hers  against  France  by  title  of  colonization 
and  possession. 

The  new  Kepublic  thus  became  the  sovereign  of  a 
magnificent  territory  regarded  in  the  comparison  with 
European  standards  of  magnitude,  and  also  of  intrin 
sic  value  and  resources  unsurpassed  by  the  posses 
sions  of  any  European  State. 

But,  even  with  such  limits,  we  felt  cribbed  and  con 
fined  from  the  first :  for  the  statesmen  of  the  United 
States  had  clear  perception  not  only  of  what  we  pos 
sessed  as  territory,  but  also  of  what  we  needed  to 
possess  in  order  to  be  a  first-rate  Power  in  America. 

We  found  ourselves  blocked  in  on  the  Xorth  by 
the  British  possessions,  which  also  overshadowed  us 
on  the  East,  and  which  were  at  that  time  of  sufficient 
relative  strength  to  constitute  an  object  of  solicitude 
to  us  so  long  as  they  remained  in  the  hands  of  Great 
Britain. 

Westward,  we  were  hemmed  in  along  the  Missis 
sippi  by  the  French,  who  also  held  the  mouths  of 
that  river,  and  barred  us  from  access  to  the  sea  in 
that  direction. 


208  •    THE   TREATY   OF   WASHINGTON. 

xyii^fe^' 

On  the  South,  Spain  shut  us  up  on  the  side  of  the 
Gulf  of  Mexico. 

It  was  impossible  in  this  state  of  things  that  the 
United  States  could  attain  the  development  to  which, 
in  other  respects,  they  had  the  right  to  aspire,  by  rea 
son  of  the  fertility  of  their  soil,  their  numerous  rivers, 
and  their  commanding  position  in  the  temperate  zone 
of  America. 

But  the  cession  of  Louisiana  to  the  United  States 
by  the  voluntary  act  of  France, — the  most  splendid 
concession  ever  made  by  one  nation  to  another, — pro 
duced  a  revolution  in  the  condition  of  America.  We 
thus  acquired  territory  of  indefinite  limits  westward, 
with  such  limits  on  the  south  as  the  pretensions  of 
Spain  would  allow,  and  with  limits  north  only  where 
superior  claim  of  right  on  the  part  of  Great  Britain 
intervened,  namely,  the  parallel  of  forty-nine  degrees 
established  between  France  and  Great  Britain  by  the 
Treaty  of  Utrecht. 

President  Jefferson  lost  no  time  in  asserting  the 
rights  of  the  United  States  in  the  interior  of  the 
Union,  and  at  the  same  time  acquiring  knowledge  of 
the  country  by  means  of  the  celebrated  expedition  of 
Lewis  and  Clark.  Theretofore  the  only  knowledge 
we  possessed  of  the  great  chain  of  the  Kocky  Mount 
ains,  and  of  the  country  or  even  the  name  of  the  coun 
try  of  Oregon  beyond,  was  founded  on  the  narration 
of  Jonathan  Carver,  or  other  information  derived 
from  the  Indians. 

We  were  thus  enabled  to  comprehend  the  relation 
of  Louisiana  to  the  shores  of  the  Pacific,  and  to  see 


>t 

HE 

209 


ert  Gray  of  the  American  ship  Columbia,  of  Boston, 
in  1792,  and  named  by  him,  and  afterward  by  the 
English  explorer,  Captain  Vancouver,  was  "  the  great 
river  of  the  West,"  the  Oregon  of  Carver. 

That  coast  had  already  been  explored  with  more 
or  less  of  diligence  by  Spanish  navigators,  fitted  out 
by  the  Viceroys  of  New  Spain,  who  gave  to  many  of 
the  islands,  straits,  and  channels  the  names  they  still 
retain  ;  and  Spain,  if  any  Power  anterior  to  the  Unit 
ed  States,  had  title  by  discovery  in  those  parts  of 
America.  -  • 

But  the  earliest  settlement  on  that  coast  was  the 
factory  of  Astoria  at  the  mouth  of  the  River  Colum 
bia,  established  by  John  Jacob  Astor. 

Then  came  the  war  between  the  United  States  and 
Great  Britain  :  the  first  effect  of  which,  as  to  the  pres 
ent  question,  was  the  military  occupation  of  Astoria 
and  of  the  country  on  the  banks  of  the  Columbia  by 
British  forces  :  subsequently  to  which,  on  the  conclu 
sion  of  peace,  although  Astoria  was  surrendered  to  us 
in  obedience  to  the  stipulations  of  the  Treaty  of  Ghent, 
yet  Great  Britain  set  up  claim  to  the  valley  of  the 
Columbia  as  against  the  United  States,  and,  indeed, 
to  all  the  country  intervening  between  the  actual  oc 
cupations  of  Spain  to  the  south  in  California,  and  those 
of  Russia  to  the  north  in  Sitka. 

Claims  of  Great  Britain  in  this  quarter,  with  but 
weak  foundation,  had  already  been  asserted  against 
Spain  to  the  south  of  the  River  Columbia. 

Controversy  on  the  subject  between  the  United 

O 


210  THE   TREATY   OF  WASHINGTON. 

States  and  Great  Britain  was  suspended  by  the  Treaty 
of  October  20, 1818.  By  that  treaty  it  was  stipula 
ted  that  from  the  Lake  of  the  Woods  to  the  "  Stony 
Mountains,"  the  line  of  demarkation  between  the  pos 
sessions  of  the  two  countries  in  America  should  be 
the  forty-ninth  parallel  of  latitude  westward  to  the 
^tony  Mountains. 

The  United  States  might  well  have  insisted  on  pro 
ceeding  due  west  from  the  most  northwestern  point 
of  the  Lake  of  the  Woods,  the  terminal  point  in  that 
direction  of  the  Treaty  of  Independence,  which  is 
nearer  the  parallel  of  50°;  but,  in  early  unsuccessful 
negotiations  on  this  subject  under  President  Jefferson, 
we  had  agreed  to  adopt  the  49th  parallel,  and  that 
agreement  was  renewed  by  the  Treaty  of  1818,  in  obe 
dience  to  the  assumption  that  this  line  had  been  es 
tablished  by  the  Treaty  of  Utrecht.* 

*  The  "Treaty  of  Peace  and  Amity"  between  France  and 
England  contains  the  following  provision  [Art.  X.]  : 

"  Quant  aux  limites  entre  la  Baie  de  Hudson  et  les  lieux  ap- 
partenans  a  la  France,  on  est  convenu  reciproquement  qu'il 
sera  nomme  incessamment  des  Commissaires,  qui  les  deter- 
mineront  dans  le  terme  d'un  an :  ...  les  memes  Commissaires 
auront  le  pouvoir  de  regler  pareillement  les  limites  entre  les 
autres  colonies  Fran9aises  et  Britanniques  dans  ce  pays-la." — 
Dumont,  t.viii.,  pt.  1,  p.  332-338. 

Mr.  Bancroft,  misled  by  Mr.  Greenhow,  says  of  this  arti 
cle: 

"  On  the  Gulf  of  Mexico,  it  is  certain  that  France  claimed  to 
the  Del  Norte.  At  the  northwest,  where  its  collision  would 
have  been  with  the  possessions  of  the  Company  of  Hudson's 
Bay,  no  treaty,  no  commission,  appears  to  have  fixed  its  lim 
its." — Bancroft's  History,  vol.  iii.,p.  343. 


THE  NORTHWESTERN  BOUNDARY -LINE.  211 

It  was  farther  provided  by  the  same  treaty  that 
the  country  claimed  by  either  Party  westward  of  the 
Stony  Mountains,  with  its  harbors,  bays,  and  creeks, 
and  the  navigation  of  all  rivers  within  the  same, 
should  be  free  and  open  for  the  term  of  ten  years  to 
the  vessels,  citizens,  and  subjects  of  the  two  Powers: 
it  being  understood  that  this  agreement  should  be 
without  prejudice  to  any  exclusive*  claim  of  either,  or 
to  the  claim  of  any  other  Power. 

This  treaty,  which  regulated  the  occupation  of  Or 
egon  for  so  many  years,  although  apparently  equal  on 
its  face,  was  very  unequal,  as  we  shall  see,  in  fact,  by 
reason  of  the  whole  country  being  immediately  over 
run  and  almost  exclusively  occupied  by  the  Hudson's 
Bay  Company. 

But  the  pretensions  of  the  United  States  received 
notable  reinforcement  through  the  Treaty  between 

Mr.  Madison  had  previously  said,  as  if  not  perfectly  certain 
.of  the  fact : 

"  There  is  reason  to  believe  that  the  boundary  between  Lou 
isiana  and  the  British  territories  north  of  it  was  actually  fixed 
by  Commissioners  appointed  under  the  Treaty  of  Utrecht,  and 
that  the  boundary  was  to  run  from  the  Lake  of  the  Woods 
westwardly  on  latitude  49°." — American  State  Papers,  Foreign 
Affairs,  vol.  iii.,  p.  90. 

The  point  was  settled,  however,  by  inquiries  made  by  Mr. 
Monroe  at  London.  He  says : 

"Commissaries  were  accordingly  appointed  who  executed 
the  stipulations  of  the  treaty  in  establishing  the  boundaries  of 
Canada  and  Louisiana  by  a  line  beginning  on  the  Atlantic  at 
a  cape  or  promontory  in  58°  30'  north  latitude;  thence  south- 
\\-estwardly  to  the  Lake  Mistosin ;  thence  farther  southwest  to 
the  latitude  49° 'north,  and  along  that  line  indefinitely."  — 
American  State  Papers,  Foreign  Affairs^  Q\.  iii.,  p.  97. 


212  THE   TREATY   OF  WASHINGTON. 

Spain  and  the  United  States  of  February  22, 1819, 
by  which  the  former  ceded  to  the  latter  the  two 
Floridas,  carrying  our  territory  down  to  the  Gulf  of 
Mexico,  and  by  which  also  a  line  of  demarkation  was 
run  between  the  territories  of  the  respective  Parties 
west  of  the  Mississippi.  This  line,  commencing  on 
the  Gulf  of  Mexico  at  the  mouth  of  the  Eiver  Sabine, 
proceeds  by  that  river,  the  Red  River,  and  the  Arkan- 
|  sas,  to  its  source  in  latitude  42°  north ;  "  and  thence 
I  by  that  parallel  of  latitude  to  the  South  Sea."  And 
I  Spain  expressly  ceded  to  the  United  States  all  her 
"  rights,  claims,  and  pretensions  to  any  territories  east 
and  north  of  the  said  line,  as  thus  defined  and  de 
scribed  by  the  treaty."  To  the  rights,  claims,  and 
pretensions  of  the  United  States  on  the  northwest 
coast  we  could  now  add  those  of  Spain. 

But  another  pretender  to  rights  on  that  coast  now 
appeared  in  the  person  of  Russia;  whose  actual  occu 
pation  came  down  to  the  parallel  of  54°  40';  and 
thereupon  it  was  agreed  between  Russia  and  the 
United  States  by  Treaty  of  April  17, 1824,  that  the 
latter  would  not  permit  any  settlement  by  its  citizens 
on  the  coast  or  islands  north  of  that  degree,  and  that 
no  subjects  of  the  former  should  be  permitted  to  settle 
on  the  coast  or  islands  south  of  the  same  degree. 
Neither  Government,  however,  undertook  to  make 
any  cession  to  the  other.  Nor  was  the  country  south 
of  the  line  described  as  a  territory  or  possession  of 
the  United  States. 

During  the  next  year,  Russia  and  Great  Britain 
concluded  a  treaty  for  the  demarkation  of  the  limits 


THE  NORTHWESTERN  BOUND ARY  -  LINE.  213 

between  them  in  the  same  quarter  by  a  line  which, 
beginning  in  54°  40'  at  the  southernmost  point  of 
Prince  of  Wales  Island,  was  made  to  run  obliquely  to 
strike  the  main-land  at  latitude  56°,  and  then  to  pro 
ceed  parallel  to  the  windings  of  the  coast  at  the  dis 
tance  of  not  exceeding  ten  marine  leagues  therefrom 
along  the  summit  of  the  coast  mountains  to  its  inter 
section  with  the  141st  decree  of  longitude  at  Mount 

o  o 

St.Elias,  and  thence  due  north  along  that  meridian  to 
the  Frozen  Ocean. 

It  has  been  too  much  the  practice  of  British  navi 
gators  and  British  map-makers  to  affix  English  names 
to  places  previously  visited  and  named  by  other 
Europeans,  and  to  found  thereon  claims  of  discov 
ery.  English  names  are  scattered  along  the  coast  of 
Russian  America, — such  as  Cook's  Inlet,  Prince  Wil 
liam  Sound,  King  George  III.  Archipelago,  Prince 
of  Wales  Archipelago; — but  no  British  claims  of 
prior  exploration  could  prevail  here  against  the 
claims  of  possession  as  well  as  discovery  presented 
by  Russia. 

In  this  treaty,  each  Government  speaks  as  the  pro 
prietor  and  sovereign  of  the  respective  territories ; 
and  it  is  this  treaty  which  defines  and  marks  out  the 
Territory  of  Alaska,  as  now  held  by  the  United  States 
under  recent  cession  from  Russia. 

In  this  condition  stood  the  title  for  more  than 
twenty  years:  the  United  States  claiming  from  the 
latitude  of  42°  to  that  of  54°  40',  in  virtue,  first,  of 
their  own  discoveries  and  settlement,  and  of  the  right 
of  the  extension  of  Louisiana  until  it  should  reach  the 


THE   TREATY   OF   WASHINGTON. 

ocean  or  some  recognized  possession  of  another  Power, 
and,  secondly,  in  virtue  of  the  discoveries  and  rights 
of  extension  of  Spain ;  and  Great  Britain  claiming  in 
virtue  of  discovery  and  possession,  and  of  rights  of  ex 
tension  of  her  actual  admitted  possessions  in  America.. 

Thus  we  arrive  at  the  question  of  what  her  actual 
admitted  possessions  wrere:  which  is  the  key  to  the 
Treaty  of  June  15, 1846,  the  interpretation  of  which 
was  referred  to  the  Emperor  of  Germany. 

On  the  restoration  of  Charles  II.,  projects  of  colo 
nization  and  of  remote  commercial  or  speculative  en 
terprises,  which  had  been  suspended  in  England  dur 
ing  the  Civil  War,  began  to  be  resumed  with  new 
zeal,  comprehending  as  well  the  East  as  the  West 
Indies. 

Among  the  great  territorial  charters  of  that  day, 
one  of  the  most  interesting  is  that  of  the  Hudson's 
Bay  Company,  by  which  the  King  granted  to  sundry 
persons,  including  the  Prince  Rupert,  the  Duke  of 
Albemarle,  the  Earl  of  Craven,  Lord  Arlington,  Lord 
Ashley,  Sir  John  Robinson,  Sir  Edward  Hungerford, 
and  others  [in  part,  it  will  be  perceived,  the  same  per 
sons  who  obtained  a  grant  of  the  two  Carolinas], 

"  The  sole  trade  and  commerce  of  all  those  seas,  straits,  bays, 
rivers,  lakes,  creeks,  and  sounds,  in  whatsoever  latitude  they 
shall  be,  that  lie  within  the  entrance  of  the  straits  commonly 
called  Hudson's  Straits,  together  with  all  the  lands  and  terri 
tories  upon  the  countries,  coasts,  and  confines  of  the  seas,  bays, 
lakes,  rivers,  creeks,  and  sounds  aforesaid,  that  are  not  already 
actually  possessed  by  or  granted  to  any  of  our  subjects,  or 
possessed  by  the  subjects  of  any  other  Christian  Prince  or 
State,  with  the  fishing  of  all  sorts  of  fish,  whales,  sturgeons,  and 


THE  NORTHWESTERN  BOUNDARY -LINE.      215 

all  other  royal  fishes  in  the  seas,  bays,  inlets,  and  rivers  within 
the  premises  and  the  fish  therein  taken,  together  with  the  roy 
alty  of  the  sea  upon  the  coasts  within  the  limits  aforesaid,  and 
all  mines  royal,  as  well  discovered  as  not  discovered,  of  gold, 
silver,  gems,  and  precious  stones,  to  be  found  or  discovered 
within  the  territories,  limits,  and  places  aforesaid,  and  that  the 
said  land  be  from  henceforth  reckoned  and  reputed  as  one  of  our 
Plantations  or  Colonies  in  America,  called  '  Rupert's  Land.' " 

This  concession  was  induced,  as  the  preamble  of 
the  charter  sets  forth,  by  the  reason  that  the  parties 

"  Have,  at  their  own  great  cost  and  charges,  undertaken  an 
expedition  for  Hudson's  Bay,  in  the  northwest  part  of  America, 
for  the  discovery  of  a  new  passage  to  the  South  Sea,  and  for 
the  finding  some  trade  for  furs,  minerals,  and  other  considerable 
commodities,  and  by  such  their  undertaking  have  already  made 
such  discoveries  as  do  encourage  them  to  proceed  farther  in 
pursuance  of  their  said  designs,  by  means  whereof  there  may 
probably  arise  very  great  advantage  to  us  and  our  Kingdom." 

The  Company's  Charter,  in  common  with  others  of 
that  period,  conveyed  to  them  the  right  to  hold  the 
territory  granted  with  all  rights  and  jurisdictions  ap 
pertaining  thereto,  as  of  the  manor  of  East  Green 
wich  in  Kent ;  the  Company  became  lords  and  pro 
prietors  of  Rupert's  Land  on  condition  of  a  yearly 
payment  to  the  Crown  of  "  two  elks  and  two  black 
beavers ;"  and  no  legal  impediment  existed  to  the  es 
tablishment  on  Hudson's  Bay  of  a  local  political  gov 
ernment  such  as  existed  in  Massachusetts  or  Virgin 
ia  ;  but,  in  reflecting  on  the  slow  growth  of  the  Brit 
ish  Colonies  in  the  more  temperate  latitudes  of  North 
America,  it  will  be  readily  seen  that  no  colonization 
could  be  effected  on  the  frozen  and  desolate  shores 
of  Hudson's  Bay.  In  effect,  the  Company  very  soon 


216  THE   TREATY  OF   WASHINGTON. 

resolved  itself  into  a  mere  commercial  undertaking 
for  trade  in  the  furs  of  the  vast  region  in  the  space 
between  Canada  or  New  France  and  the  Arctic  Sea, 
inhabited  only  by  wandering  bands  of  Indians. 

When  the  great  Succession  War  broke  out,jnvolv- 
ing  all  Europe,  it  could  not  fail  to  reach  America; 
for  the  possessions  of  three  of  the  four  principal 
Powers  engaged, — France,  Great  Britain,  and  Spain, 
—occupied  alternate  points  on  the  coast  of  the  At 
lantic.  The  French,  of  course,  endeavored  to  avail 
themselves  of  the  opportunity  to  drive  out  or  to 
weaken  the  English  on  both  sides  of  them,  and  es 
pecially  in  Rupert's  Land,  which  they  invaded  and 
partly  conquered,  but  restored  by  the  Subsequent 
Treaty  of  Utrecht. 

After  this  time,  the  Company,  safe  in  its  arctic  sol 
itudes,  prospered  without  check  for  a  century,  filling 
Rupert's  Land  with  forts  and  factories,  and  engross 
ing  the  fur  trade  of  North  America. 

Thereupon  a  rival  Company  entered  the  field,  un 
der  the  auspices  of  the  Province  of  Canada,  founding 
its  enterprise  on  the  assertion  that  Rupert's  Land 
had  only  a  limited  extension  south  and  west,  to  cov 
er  no  more  than  the  water-shed  terminating  at  Hud 
son's  Bay,  with  no  rights  or  jurisdiction  southward 
and  westward  to  the  great  Lakes  and  the  Rocky 
Mountains. 

After  a  long  and  violent  controversy,  the  North 
west  Fur  Company  was  by  agreement  of  parties 
merged  to  the  Hudson's  Bay  Company. 

The  combined  influence  of  the  parties  interested  in 


THE   NORTHWESTERN   BOUNDARY-LINE.  217 

the  aggregate  Company  enabled  it  to  obtain  for  a 
term  of  years,  first  in  1821,  and  afterward  in  1838, 
exclusive  right  to  trade  with  the  Indians  in  certain 
parts  of  North  America  not  belonging  to  Prince  Ru 
pert's  Land. 

The  region  of  country  thus  opened  by  license  ex 
clusively  to  the  Hudson's  Bay  Company  is  described 
in  the  license  of  1838  as  follows : 

"The  exclusive  privilege  of  trading  with  the  Indians  in  all 
such  parts  of  North  America  to  the  northward  and  to  the  west 
ward  of  the  lands  and  territories  belonging  to  the  United  States 
of  America  as  should  not  form  part  of  any  of  our  provinces  in 
North  America,  or  of  any  lands  or  territories  belonging  to  the 
said  United  States  of  America,  or  to  any  European  Government, 
State,  or  Power." 

In  so  far  as  these  licenses  affected  only  the  region 
west  and  south  of  Hudson's  Bay  depending  on  Lake 
Winnipeg,  Lake  Athabasca,  the  two  Slave  Lakes,  and 
other  lands  east  of  the  Rocky  Mountains,  they  did 
not  concern  the  United  States. 

But  'in  so  far  as  they  affected  the  region  west  of 
the  Rocky  Mountains,  such  a  license  is  in  plain  viola 
tion  of  treaties  with  the  United  States.  The  Queen 
of  England  could  give  a  license  in  that  region  to  the 
Hudson's  Bay  Company  exdusiveof  all  other  English 
men;  but  she  could  not  give  any  to  exclude  citizens 
of  the  United  States.  That,  indeed,  the  grant  does 
not  profess  to  do;  but,  in  effect,  it  did  that  and  more ; 
for  in  the  hands  of  the  Company  it  was  "  a  charter 
of  licensed  usurpation  and  pillage  in  the  whole  of 
the  described  region  of  Xorth  America."  The  Com 
pany  established  forts  or  posts  at  every  eligible  or 


218  THE   TREATY   OF  WASHINGTON. 

strategic  point  between  the  mountains  and  the  shores 
of  the  Pacific ;  their  servants  killed  the  fur-bearing 
animals;  they  cut  and  exported  the  timber;  and, 
by  means  of  its  wealth  and  organization,  the  Com 
pany  monopolized  the  commerce  and  the  resources 
substantially  to  the  exclusion  for  a  long  'time  of  the 
people  of  the  United  States. 

But  at  length  some  settlements  of  Americans  had 
been  commenced  in  Oregon;  and  the  attention  of 
Congress  was  called  to  the  usurpations  of  the  Hud 
son's  Bay  Company  by  Mr.  Benton,  Mr.  Linn,  and  the 
writer  of  these  pages :  in  consequence  of  which  steps 
were  taken  to  put  an  end  to  the  joint  occupation  of 
Oregon.  In  fact,  the  Company  had  now  set  up  the 
most  extravagant  pretensions,  exaggerating  a  mere  li 
cense  to  trade  into  a  grant  of  proprietorship  to  the 
whole  of  the  immense  region  south  and  west  of  Ku- 
pert's  Land,  to  the  dissatisfaction  of  the  people  of 
Canada  -as  well  as  of  the  United  States.  For  it  was 
the  interest  of  the  Company  to  retain  the  whole 
country  occupied  by  them  in  the  condition  of  a  mere 
hunting-field,  and  quite  uninhabited  except  by  vassal 
Indians :  while  the  Canadians  desired  that  it  should 
be  opened  to  colonization,  so  as  to  add  to  the  materi 
al  resources  and  political  force  of  the  Canadian  Prov 
inces.  Parliamentary  inquiry  into  the  rights  of  the 
Company  was  instituted;  it  was  imperatively  instruct 
ed  by  Sir  Edward  Bulwer  Lytton  [afterward  Lord 
Lytton],  Colonial  Minister  [whose  dispatches  show 
that  he  was  not  less  eminent  as  a  statesman  than  as 
a  poet  and  a  novelist],  to  desist  from  all  general  pre- 


THE  NORTHWESTERN   BOUNDARY  -  LINE.  219 

tensions  of  proprietorship  founded  upon  license  to 
trade ;  its  license  was  revoked ;  it  was  compelled  to 
yield  up  Oregon  to  the  United  States;  and  it  was 
half -persuaded  and  half  -  constrained  to  sell  its  char 
tered  rights  to  the  Canadian  Dominion,  and  to  shrink 
into  comparative  insignificance  in  America. 

When  the  Government  of  the  United  States  enter 
ed  into  negotiations  with  Great  Britain  for  termina- 

• 

ting  the  joint  occupation  of  Oregon,  the  machinations 
of  the  Hudson's  Bay  Company  were  the  great  disturb 
ing  fact  which  for  a  long  time  prevented  the  conclu 
sion  of  a  treaty  and  its  due  execution. 

Meanwhile  the  two  Governments,  after  extraordi 
nary  contention,  at  length  arrived  at  a  settlement  of 
another  boundary  question,  which  had  remained  open 
ever  since  the  Treaty  of  Independence,  namely,  the 
boundary -line  on  the  northeast  between  the  British 
possessions  and  the  United  States  [Treaty  of  Novem 
ber  20, 1842]. 

The  duration  of  the  Treaty  of  1818  was  limited  to 
ten  years.  As  the  expiration  of  this  time  approached, 
the  American  Government  offered  to  settle  the  ques 
tion  of  Oregon  by  extending  the  line  of  49°  to.  the 
Pacific  Ocean,  and  announced  this  as  "our  ultimatum." 
The  British  Government  objected  that  this  line  would 
cut  off  the  southern  part  of  Vancouver's  Island.  We 
replied  by  proposing  to  yield  this  part  for  an  equiv 
alent.  But  it  was  for  the  interest  of  the  Hudson's 
Bay  Company,  which  was  in  practical  possession  of  the 
wrhole  country,  to  defeat  this  attempt  at  settlement, 
and  it  was  defeated,  and  the  United  States  reluctant- 


220  THE   TREATY   OF   WASHINGTON. 

ly  consented  to  the  prolongation  of  the  nominal  joint 
occupation. 

But  the  discussions  in  Congress  heretofore  men 
tioned,  and  the  disposition  of  Americans  to  settle  in 
Oregon,  had,  in  1842,  rendered  the  joint  occupation 
intolerable  to  the  people  of  the  United  States,  and 
the  negotiation  for  settlement  was  renewed  on  the 
premises  of  the  49th  parallel.  The  baleful  influence 
of  the  Hudson's  Bay  Company  caused  the  negotiation 
to  drag  on  for  the  period  of  four  years;  when  the 
Treaty  of  1846  was  at  length  concluded,  yielding  to 
Great  Britain  the  southernmost  extremity  of  Van 
couver's  Island. 

It  was  the  question  of  Vancouver's  Island  which 
chiefly  occupied  the  succeeding  negotiators.  To  run 
the  line  on  the  49th  parallel  to  the  sea,  and  "  thence 
by  the  Canal  de  Haro  and  Straits  of  Fuca  to  the 
ocean,"  wras  Lord  Aberdeen's  proposition  to  Mr. 
McLane.  And  the  same  understanding  of  the  ques 
tion, — that  is,  to  concede  to  Great  Britain  "  Vancouver's 
Island,  an$  nothing  else  south  of  latitude  49°," — per 
vades  the  dispatches  and  debates  on  both  sides.  And 
on  such  premises,  notwithstanding  much  opposition 
in  Congress  and  out  of  it,  the  United  States  acceded 
to  these  terms  as  a  measure  of  peace  and  of  concilia 
tion  toward  Great  Britain. 

But  strife  was  unexpectedly  renewed  two  years 
afterward  by  Lord  Palmerston,  or  by  Lord  John  Rus 
sell,  who  had  succeeded  as  Premier  to  Sir  Robert  Peel, 
and  their  action  has  kept  up  dispute  on  the  subject 
between  the  two  Governments  for  more  than  twenty 


THE  NORTHWESTERN  BOUNDARY -LINE.  221 

years  solely  on  account  of  pretensions-which  ought  not 
to  have  been  raised,  and  the  injustice  of  which  has  now 
at  length  been  demonstrated  by  the  Award  of  the 
Emperor  of  Germany.  If  this  Award  be  unwelcome 
to  the  people  of  Great  Britain,  no  feeling  of  unkind- 
ness  in  that  respect  should  be  attached  by  them  to 
the  United  States.  The  Canal  de  Haro  was  undoubt 
edly  intended  by  the  negotiators  of  the  Treaty  of 
1846  as  the  water-boundary  in  that  quarter:  that  in 
tention  accords  with  the  obvious  and  only  reasonable 
signification  of  the  language  of  the  treaty. 

THE  AWARD. 

This  conclusion  is  clearly  and  conclusively  proved 
in  the  Memorial  presented  in  the  name  of  the  Amer 
ican  Government  to  the  German  Emperor  by  the 
American  Plenipotentiary  and  Agent,  Mr.  George 
Bancroft,  and  in  his  Reply  to  the  Case  of  Great 
Britain. 

Mr.  Bancroft  wras  pre-eminently  fitted  for  the  per 
formance  of  this  duty.  Possessing  intellectual  quali 
ties  of  a  high  order,  and  particular  personal  estimation 
at  the  Court  of  Berlin,  he  enjoyed  the  advantage  of 
having  been  a  member  of  the  Cabinet  under  whose 
auspices  the  Treaty  of  1846  was  negotiated, — of  sub 
sequently  representing  his  Government  at  the  Court  of 
St.  James  at  the  time  when  the  present  controversy 
commenced, — and  of  being  thoroughly  master  of  all 
the  older  diplomatic  incidents  of  the  question  by  his 
studies  as  the  historian  of  the  United  States.  Of  the 
value  of  all  these  qualifications  to  his  Government  on 


222  '  THE   TREATY  OF  WASHINGTON. 

the  present  occasion,  we  have  the  proof  in  two  most 
complete  and  most  convincing  arguments  which  he 
addressed  to  the  Emperor  of  Germany.  . 

The  Agent  on  the  part  of  Great  Britain  was  Ad 
miral  James  C.  Prevost,  who  had  been  the  Commis 
sioner  of  his  Government,  in  association  with  Mr. 
Archibald  Campbell,  Commissioner  of  the  United 
States,  for  determining  and  marking  the  line  of  bound 
ary  prescribed  by  the  treaty,  and  who,  of  course,  pos 
sessed  all  the  special  knowledge  requisite  for  the 
preparation  of  any  possible  argument  in  support  of 
the  pretensions  of  Great  Britain. 

The  Emperor,  it  appears,  referred  the  arguments  on 
both  sides  to  three  experts,  Dr.  Grimm,  Dr.  Kiepert, 
and  Dr.  Goldschmidt,  personages  among  the  most 
eminent  of  his  subjects  in  jurisprudence  and  in  sci 
ence,  upon  whose  report  he  decided  on  the  21st  of 
October,  1872,  in  the  terms  of  the  reference,  that  the 
claim  of  the  United  States  to  have  the  line  drawn 
through  the  Canal  de  Karo  is  most  in  accordance 
with  the  true  interpretation  of  the  treaty  concluded 
on  the  15th  of  June,  1846,  between  Great  Britain  and 
the  United  States. 

"This  Award,"  says  the  President's  Message  of  De 
cember  2, 1872,  "  confirms  the  United  States  in  their 
claim  to  the  important  archipelago  of  islands  lying 
between  the  continent  and  Vancouver's  Island,  which 
for  more  than  twenty-six  years  [ever  since  the  ratifi 
cation  of  the  treaty]  Great  Britain  had  contested,  and 
leaves  us,  for  the  first  time  in  the  history  of  the  United 
States  as  a  nation,  without  a  question  of  disputed 


THE  NORTHWESTERN  BOUNDARY -LINE.  223 

boundary  between  our  territory  and  the  possessions 
of  Great  Britain  on  this  continent." 

In  recent  debates  in  the  House  of  Lords,  the  Earl 
of  Lauderdale  criticised  the  Treaty  of  Washington 
in  severe  terms,  partly  on  the  assumption  that  the 
United  States  have  in  reserve  new  claims  respecting 
the  northwestern  boundary-line.  He  is  mistaken. 
Nothing  remains  but  questions  of  hydrography  for 
Commissioners  to  determine,  which  there  is  no  diffi 
culty  in  doing ;  and  arrangements  have  already  been 
made  by  the  two  Governments  for  the  appointment 
and  organization  of  the  requisite  Commission. 

In  conclusion,  let  me  say  that  Great  Britain  has  no 
cause  to  regret  the  adverse  conclusion  of  this  contro 
versy.  The  conditions  of  the  Treaty  of  1846  involved 
positive  concession  on  the  part  of  the  United  States, 
if  not  as  to  the  general  line,  yet  in  giving  up  the 
whole  of  the  Island  of  Vancouver  without  any  com 
pensation.  We  certainly  did  not  mean  at  the  same 
time  to  give  up  the  important  island  of  San  Juan,  and 
various  other  islands  intervening  between  that  and 
the  main-land,  which  would  have  been  the  effect  of 
admitting  the  Straits  of  Rosario  as  the  water-bound 
ary.  We  knew  that  prior  to  and  during  the  negotia 
tions  the  Canal  de  Haro  was  expressly  mentioned 
and  always  understood  as  the  true  channel,  corre 
sponding  to  the  desire  of  the  British  Government  to 
secure  Vancouver's  Island. 

To  Great  Britain  it  can  be  of  no  possible  conse 
quence  which  of  the  lines  of  boundary  should  be  es 
tablished.  What  possessions  remain  to  her  on  the 


224  THE  TREATY  OF  WASHINGTON. 

northwest  coast  of  America,  Vancouver's  Island  and 
British  Columbia  can  not  ever  be  of  special  impor 
tance  to  her  either  as  a  military  post  or  as  a  colony. 
Nor  can  they  be  of  any  military  advantage  to  the 
Canadian  Dominion,  and  may,  on  the  contrary,  con 
stitute  in  her  hands  a  temptation  to  needless  expense 
in  fortifications,  notwithstanding  which,  owing  to  the 
remoteness  of  those  countries  by  land  and  their  in 
accessibility  to  her  by  sea,  the  Dominion  would  find 
them  quite  untenable  in  the  presence  of  the  powerful 
American  States  on  the  shores  of  the  Pacific  Ocean. 

To  the  United  States,  on  the  other  hand,  it  is  im 
portant  to  have  had  the  question  decided  in  our  favor. 
We  are  now  a  real  power  on  the  Pacific  coast,  which 
Great  Britain  is  not  and  can  not  be.  Holding  the 
Territory  of  Alaska  to  the  north  of  the  British  pos 
sessions,  the  Territory  of  Washington,  the  State  of 
Oregon,  and  the  great  and  rich  State  of  California 
ceded  to  us  by  the  Mexican  Eepublic,  with  the  grow 
ing  States  and  Territories  on  their  rear,  it  would  have 
been  to  us  intolerable  to  be  excluded  from  the  great 
channel  between  Vancouver's  Island  and  the  main 
land,  or  to  traverse  it  only  under  the  guns  of  British 
fortresses  on  that  island.  Such  a  settlement  would 
have  had  in  it  the  germs  of  war :  the  present  affords 
assurance  of  Stable  peace. 

Happily  the  United  States  and  Great  Britain  are 
now  delivered  from  the  complications  in  their  rela 
tions  occasioned  by  the  exorbitant  power  of  the  Hud 
son's  Bay  Company.  By  other  provisions  of  the  same 
Treaty  of  1846,  the  United  States  had  made  to  Great 


THE  NORTHWESTERN   BOUNDARY - 

Britain  the  concession  of  recognizing  certain  preten 
sions  of  that  Company  in  Oregon  and  Washington, 
founded  on  mere  encroachment,  and,  in  order  to  be  re 
lieved  of  these  pretensions,  paying  to  the  Company  a 
small  sum  in  satisfaction  of  its  claims,  about  one  tenth 
of  what  was  demanded  for  it  in  the  name  of  the  Brit 
ish  Government.  * 

Lord  Milton  expresses  the  opinion  that  "On  a  just 
and  equitable  solution  of  the  so-called  San  Juan  Water- 
boundary  Question  depends  the  future,  not  only  of 
British  Columbia,  but  also  of  the  entire  British  pos 
sessions  in  North  America."  By  "-just  and  equitable 
solution"  he  means,  of  course,  decision  in  favor  of 
Great  Britain.  If  the  premises  are  correct,  then  the 
consequences  are  a  fact  accomplished.  But  he  over 
estimates  the  value  of  the  Archipelago  of  San  Juan  to 
Great  Britain.  His  opiniom  assumes  what* is  impossi 
ble,  the  acquisition  of  considerable  intrinsic  strength 
on  the  part  of  British  Columbia,  sustained  by  railroad 
connection  with  the  Provinces  of  Ontario  and  Quebec. 
But  what  would  avail,  in  a  military  point  of  view,  a 
railroad  running  through  a  thousand  miles  of  com 
paratively  uninhabited  country  within  easy  reach  at 
every  point  to  the  armies  of  the  United  States  ?  I 
think  the  future  of  the  British  possessions  in  North 
America  depends  on  a  different  order  of  facts,  of  which 
something  will  be  said  in  another  chapter  in  speak 
ing  of  the  commercial  relations  of  the  United  States 
and  the  Canadian  Dominion. 

P 


226  THE  TREATY  OF  WASHINGTON. 


CHAPTER  V. 

THE    FISHERIES. 

HISTORY  OF  THE   QUESTION. 

THE  TREATY  OF  INDEPENDENCE  was,  I  repeat,  a  vir 
tual  partition  of  the  British  Empire  in  America  be 
tween  the  Metropolis  and  the  Thirteen  United  Col 
onies.  It  was  not  a  treaty  founded  on  military  pos 
session  :  for  the  Colonies  had  no  such  possession  save 
along  the  coast  of  the  Atlantic  Ocean,  and  Great 
Britain  occupied  several  posts  north  and  west  of 
the  Ohio  and  on  the  Great  Lakes.  The  theory  of  the 
treaty  was  to  recognize  the  Colonies  as  sovereign  ac 
cording  to  their  political  limits  as  fixed  by  charter 
and  by  the  public  law  of  England. 

In  conformity  W7ith  this  theory,  the  treaty  stipu 
lates  that  the  United  States  shall  continue  in  the  en 
joyment  of  the  coast  fisheries,  as  follows  : 

"  Article  III.  It  is  agreed  that  the  people  of  the  United  States 
shall  continue  to  enjoy  unmolested  the  right  to  take  fish  of  ev 
ery  kind  on  the  Grand  Bank,  and  on  all  the  otherbanks  of  New 
foundland  ;  also  in  the  Gulf  of  St.  Lawrence,  and  at  all  other 
places  in  the  sea  where  the  inhabitants  of  both  countries  used 
at  any  time  heretofore  to  fish ;  and  also  that  the  inhabitants  of 
the  United  States  shall  have  liberty  to  take  fish  of  every  kind 
on  such  part  of  the  coast  of  Newfoundland  as  British  fishermen 
shall  use  [but  not  to  dry  or  cure  the  same  on  that  island] ;  and 


THE   FISHERIES.  l'L'7 

also  on  the  coasts,  bays,  and  creeks  of  all  other  of  His  Britannic 
Majesty's  dominions  in  America ;  and  that  the  American  fish 
ermen  shall  have  liberty  to  dry  and  cure  fish  in  any  of  the  un 
settled  bays,  harbors,  and  creeks  of  Xova  Scotia,  Magdalen  Isl 
ands,  and  Labrador,  so  long  as  the  same  shall  remain  unsettled ; 
but  so  soon  as  the  same  or  either  of  them  shall  be  settled,  it 
shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish  at 
the  said  settlement,  without  a  previous  agreement  for  that  pur 
pose  with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground." 

Notwithstanding  the  absolute  terms  of  this  treaty 
in  regard  to  the  question  of  peace,  there  survived  on 
both  sides  so  much  of  irritation,  and  so  many  points 
of  mutual  relation  remained  uncertain,  that  the  treaty 
was  in  some  respects  little  more  than  a  truce.  We 
had  special  cause  to  complain  of  the  persistent  occu 
pation  of  northwestern  posts  by  Great  Britain,  and  its 
effect  on  the  Indians  within  our  lines.  On  the  other 
hand,  to  say  nothing  of  minor  matters,  when  the  wars 
of  the  French  Revolution  commenced,  and  the  French 
Republic  undertook  to  use  our  ports  as  the  base  of 
naval  operations  against  Great  Britain,  the  latter 
Power  took  umbrage  of  course ;  and  it  was  only  the 
firm  attachment  of  President  Washington  to  peace, 
which  prevented  these  difficulties  from  fatally  em 
broiling  the  two  countries,  and  which  led  to  the  con 
clusion  of  the  Treaty  of  December  19,  1794,  as  the 
similar  spirit  of  President  Grant  led  to  the  conclusion 
of  the  Treaty  of  Washington. 

During  the  next  ten  years,  the  United  States  labor 
ed  to  maintain  their  neutrality  in  the  presence  of  the 
universal  war  by  land  and  sea  which  raged  between 
the  great  European  Powers.  Both  France  and  En- 


228  THE  TREATY  OF  WASHINGTON. 

gland  gave  to  us  good  cause  of  rupture;  we  barely 
escaped  war  with  France  in  1798;  we  were  forced 
into  war  with  England  in  1812;  and  in  the  course 
of  all  these  events  the  hand  of  the  Government  was 
restrained,  if  not  paralyzed,  by  the  factious  force  of 
sympathies  in  the  United  States,  on  the  one  side  for 
France  and  on  the  other  for  England.  Hence,  alike 
in  the  quasi  war  with  the  former,  and  the  declared 
war  with  the  latter,  the  results  as  to  the  United  States 
were  uncertain,  imperfect,  trivial  even,  compared  with 
the  great  objects  which  might  have  been  accomplish 
ed  by  united  counsels. 

On  the  side  of  France,  however,  it  must  be  admit 
ted  that  our  disposition  to  avoid  pushing  matters  to 
extremities  contributed  to  gain  for  us  the  immense 
benefit  of  the  acquisition  of  Louisiana. 

Afterward,  although  the  Berlin  and  Milan  Decrees 
of  France  and  the  Orders  in  Council  of  Great  Britain 
constituted  each  alike  good  cause  of  war  with  either, 
yet  the  United  States  held  back  at  vast  sacrifice,  until 
continued  assertion  of  the  right  to  impress  seamen  on 
board  of  our  merchant  ships,  and,  indeed,  to  visit  our 
ships-of-war,  and  other  exaggerations  of  belligerent 
right,  forced  us  into  war«with  Great  Britain. 

The  treaty  by  which  that  war  was  concluded  is 
one  of  the  most  unsatisfactory  in  the  annals  of  the 
United  States.  It  was  absolutely  silent  in  regard  to 
all  the  subjects  of  controversy  which  had  occasioned 
the  war.  Nothing  is  said  of  the  belligerent  encroach 
ments  of  Great  Britain  on  the  neutral  rights  of  the 
United  States,  nothing  of  maritime  search,  nothing  of 


THE  FISHERIES.  229 

the  impressment  of  real  or  pretended  British  subjects 
on  board  ships  of  the  United  States,  And  it  left 
room,  by  its  silence,  for  Great  Britain  to  raise  ques 
tion  of  our  right  to  participate  in  the  coast  fisheries, 
which  question,  although  dealt  with  from  time  to  time 
in  successive  treaties,  has  more  than  once  seriously 
endangered  the  peace  of  the  two  Governments. 

Does  war  have  the  effect  of  annulling  all  existing 
treaties  ?  A  general  answer  to  this  question  is  given 
by  one  of  the  most  authoritative  of  modern  publicists 
[Calvo]  as  follows : 

"If  the  treaty  of  peace  modifies  anterior  treaties,  or  express 
ly  declares  the  renewal  of  them,  the  dispositions  of  the  treaty 
of  peace  are  thereafter  to  constitute  the  law;  but  if  no  partic 
ular  mention  is  made  in  this  respect,  the  anterior  treaties  must 
necessarily  continue  to  have  full  force  and  effect.  In  order 
that  they  should  be  deemed  definitively  abrogated,  it  would 
be  requisite  that  they  shall  not  only  be  suspended  by  the  war 
but  annulled  in  fact,  as  in  the  case  of  treaties  of  alliance  of 
which  the  raison  d'etre  ceases  at  the  end  of  the  war:  it  would 
be  requisite,  indeed,  that  their  contents  should  be  incompatible 
with  the  stipulations  of 'the  treaty  of  peace,  which  occurs,  for 
example,  in  what  regards  ancient  treaties  relative  to  the  de 
limitation  of  frontiers  between  two  States." 

The  Supreme  Court  of  the  United  States  lays  down 
the  law  as  follows  : 

"  TTe  think  that  treaties  stipulating  for  permanent  rights  and 
general  arrangements,  and  professing  to  aim  at  perpetuity,  and 
to  deal  with  the  case  of  war  as  well  as  of  peace,  do  not  cease 
on  the  occurrence  of  war,  but  are,  at  most,  only  suspended 
while  it  lasts ;  and  unless  they  are  waived  by  the  parties,  or 
new  and  repugnant  stipulations  are  made,  they  revive  in  their 
operations  at  the  return  of  peace." 

Such  has  been  the  received  doctrine  in  the  United 


230  THE  TREATY  OF  WASHINGTON. 

States,  to  the  effect  that  war  does  not,  as  an  absolute, 
universal  rule,  abrogate  existing  treaties,  regardless 
of  their  tenor  and  particular  contents ;  and  it  is  the 
only  doctrine  compatible  with  reason,  justice,  common* 
sense,  and  the  diplomatic  history  of  Europe. 

But  the  British  Government,  in  the  celebrated  dis 
patch  to  Mr.  Adams  of  October  30,  1815,  signed  by 
Lord  Bathurst,  and  understood  to  be  the  composition 
of  Mr.  Canning,  declared  the  position  of  Great  Britain 
to  be  :  "  She  knows  no  exception  to  the  rule  that  all 
treaties  are  put  an  end  to  by  a  subsequent  war  be 
tween  the  same  parties."  This  proposition,  in  its  ab 
soluteness  of  expression,  if  it  is  intended  as  an  asser 
tion  of  any  established  practice  of  nations,  or  any  rec 
ognized  doctrine  of  the  law  of  nations,  is  unfounded 
and  unauthorized.  Many  treaties  are  made  precisely 
for  the  case  of  war,  and  only  become  efficacious  in 
virtue  of  the  existence  of  war.  The  assertion  of  Lord 
Bathurst  is  altogether  too  broad,  as  Dr.  Bluntschli 
demonstrates.  * 

Nevertheless,  acting  on  such  extreme  premises,  Great 
Britain  pretended  that  our  rights  of  fishery  had  been 
abrogated  by  the  war,  and  were  not  revived  by  peace; 
and  that  this  effect  was  the  true  interpretation  of  the 
omission  to  mention  the  subject  in  the  Treaty  of 
Ghent. 

The  Commissioners  of  the  United  States  who  ne 
gotiated  the  Treaty  of  Ghent  were  men  of  unques 
tionable  patriotism  and  of  the  highest  character  and 
intelligence:  it  would  be  out  of  place  here  to  reopen 
the  dispute  as  to  certain  special  causes  of  the  failure 


THE  FISHERIES.  231 

of  the  Commissioners  to  secure  in  that  treaty  recog 
nition  of  the  fishery  rights  of  the  United  States.  But 
it  is  due  to  the  memory  of  the  American  Commission 
ers,  and  especially  to  Mr.  Gallatiu,  Mr.  Adams,  and 
Mr.  Bayard,  to  say  that,  in  all  the  negotiation  at  Ghent, 
they  and  their  associates  were  hampered  by  the  dis 
couraged  state  of  mind  of  the  American  Government, 
embarrassed,  as  it  was,  by  political  difficulties  at 
home,  and  alarmed,  if  not  terrified,  by  the  triumph  of 
Great  Britain  in  Spain  and  France,  and  the  total  over 
throw  of  Xapoleon,  which  seemed  to  leave  the  Brit 
ish  Government  free  to  dispatch  overwhelming  forces 
of  sea  and  land  against  the  United  States. 

The  autumn  subsequent  to  those  events  was  the 
darkest  period  in  the  history  of  the  country.  Noth 
ing  but  the  shock  produced  by  the  great  change  in 
the  whole  face  of  affairs  in  Europe  could  have  extort 
ed  from  the  American  Government  those  final  instruc 
tions  to  our  Commissioners,  which  authorized  them 
to  agree  to  the  status  quo  ante  lettum  as  the  basis  of 
negotiation, — which  spoke  of  our  right  to  the  fisheries, 
and  of  our  foreign  commerce,  in  equivocal  terms, — 
and  which,  indeed,  left  the  Commissioners  free  to  con 
clude  such  a  treaty  as  their  own  judgment  should 
approve  under  existing  circumstances,  provided  only 
they  saved  the  rights  of  the  United  States  as  an  inde 
pendent  nation. 

How  different  might  and  would  have  been  those 
instructions,  had  the  Government  but  struggled  on  a 
little  longer  against  the  adverse  circumstances  of  the 
hour !  Courage  and  procrastination  would  have  made 


232  THE   TREATY   OF   WASHINGTON. 

us  masters  of  the  situation,  and  enabled  us  to  dictate 
terms  to  Great  Britain. 

Remember  that  the  Treaty  of  Ghent  was  signed  on 
the  24th  of  December,  1814,  and  that  the  disastrous 
defeat  of  the  British  forces  attacking  New  Orleans  oc 
curred  a  fortnight  afterward,  on  the  8th  of  January, 
1815.  This  event,  if  the  negotiation  at  Ghent  had 
remained  open,  could  not  but  have  strengthened  the 
American  Government ;  and,  two  months  later,  all 
the  difficulties  in  its  path  would  have  been  removed 
by  the  landing  of  Napoleon  at  Golf  Jouan  [March  1, 
1815]  and  the  renewal  of  the  war  in  Europe. 

But  the  pretension  of  Great  Britain,  that  the  war 
had  abrogated  any  part  of  the  Treaty  of  Indepen 
dence,  was  evidently  untenable ;  and  the  justice  of 
the  cause  of  the  United  States-  was  so  manifest  that, 
after  three  or  four  years  of  discussion,  the  British 
Government  agreed  to  the  express  recognition  of  our 
fishery  rights  as  follows  [Treaty  of  October  20,1818]: 

•;    " 

"Whereas  differences  have  arisen  respecting  the  liberty 
claimed  by  the  United  States,  for  the  inhabitants  thereof,  to 
take,  dry,  and  cure  fish  on  certain  coasts,  bays,  harbors,  and 
creeks  of  His  Britannic  Majesty's  dominions  in  America,  it  is 
agreed  between  the  high  contracting  parties  that  the  inhabit 
ants  of  the  said  United  States  shall  have,  forever,  in  common 
with  the  subjects  of  His  Britannic  Majesty,  the  liberty  to  take 
fish  of  every  kind  on  that  part  of  the  southern  coast  of  New 
foundland  which  extends  from  Cape  Ray  to  the  Rameau  Isl 
ands,  on  the  western  and  northern  coast  of  Newfoundland 
from  the  said  Cape  Ray  to  the  Quirpon  Islands,  on  the  shores 
of  the  Magdalen  Islands,  and  also  on  the  coasts,  bays,  harbors, 
and  creeks  from  Mount  Joly,  on  the  southern  coast  of  Labra 
dor  to  and  through  the  Straits  of  Belleisle,  and  thence  north- 


THE   FISHERIES.  233 

wardly  indefinitely  along  the  coast,  without  prejudice,  how 
ever,  to  any  of  the  exclusive  rights  of  the  Hudson's  Bay  Com 
pany.  And  that  the  American  fishermen  shall  also  have  lib 
erty,  forever,  to  dry  and  cure  fish  in  any  of  the  unsettled  bays, 
harbors,  and  creeks  of  the  southern  part  of  the  coast  of  New 
foundland,  hereabove  described,  and  of  the  coast  of  Labrador; 
but  so  soon  as  the  same,  or  any  portion  thereof,  shall  be  settled, 
it  shalljiotj?e  lawful  for  the  said  fishermen  to  dry  or  cure  fish 
at  such  portion  so  settled,  without  previous  agreement  for  such 
purpose  with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground.'  And  the  United  States  hereby  renounce,  forever,  any 
liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants  there 
of  to  take,  dry,  or  cure  fish  on  or  within  three  marine  miles 
of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic 
Majesty's  dominions  in  Ainerica,  not  included  within  the  above- 
mentioned  limits :  Provided,  however,  that  the  American  fisher 
men  shall  be  permitted  to  enter  such  bays  or  harbors  for  the 
purpose  of  shelter  and  of  repairing  damages  therein,  of  purchas 
ing  wood,  and  of  obtaining  water,  and  for  no  other  purpose 
whatever.  But  they  shall  be  under  such  restrictions  as  may 
be  necessary  to  prevent  their  taking,  drying,  or  curing  fish 
therein,  or  in  any  other  manner  whatever  abusing  the  privi 
leges  hereby  reserved  to  them." 

In  virtue  of  these  treaty  provisions,  citizens  of  the 
United  States  continued  to  fish  on  the  coasts  of  the 
British  Provinces  without  interruption  for  some  twen 
ty  years,  when  question  was  raised  as  to  their  right 
to  fish  within  the  bays  or  indents  of  the  coast,  in 
consequence  of  an  opinion  of  the  Law  Officers  of  the 
Crown  that  the  expression  "three  marine  miles  of 
any  of  the  coasts,  bays,  creeks,  or  harbors,"  within 
which  citizens  of  the  United  States  were  excluded 
from  any  right  of  fishing  on  the  coast  of  British  Amer 
ica,  intends  miles  "to  be  measured  from  the  headlands, 
or  extreme  points  of  land  next  the  sea  or  the  coast,  or 


234:  THE   TREATY  OF  WASHINGTON. 

of  the  entrance  of  bays  or  indents  of  the  coast,"  and 
that,  consequently,  American  fishermen  had  no  right 
to  enter  bays,  there  to  take  fish,  although  the  fishing 
might  be  at  a  greater  distance  than  three  miles  from 
the  shore  of  the  bay.  * 

This  opinion,  be  it  observed,  makes  no  distinction 
between  close  bays  and  open  ones,  large  indents  of 
the  coast  and  small  ones,  and,  if  carried  into  effect  by 
the  British  Government,  would  exclude  citizens  of  the 
United  States  from  a  large  part  of  the  productive  fish 
ing-grounds  on  the  coast  of  British  America. 

Now,  strange  to  say,  this  opinion  of  the  Law  Officers 
of  the  Crown  is  based  on  a  mere  blunder  of  theirs, 
or,  to  say  the  least,  on  a  fiction,  or  a  bald  interpolation. 

After  stating  their  conclusion,  they  assign,  as  the 
sole  reason  of  it : 

"As  [that  is,  because]  we  are  of  opinion  that  the  term  '  head 
land  '  is  used  in  the  treaty  to  express  the  part  of  the  land 
we  have  before  mentioned,  including  the  interior  of  the  bays 
and  the  indents  of  the  coasts." 

It  is  not  true  that  "the  term  'headland'  is  used  in 
the  treaty  to  express  the  part  of  the  land  we  have 
before  mentioned." 

Neither  the  term  "  headland  "  nor  any  word  of  simi 
lar  signification  is  to  be  found -in  the  treaty.  The 
Law  Officers  of  the  Crown  undertook  to  construe  the 
treaty  without  reading  it,  and  by  this  presumptuous 
carelessness  caused  the  British  Government  to  initi 
ate  a  series  of  measures  of  a  semi-hostile  character, 
which  came  very  near  producing  another  war  be 
tween  Great  Britain  and  the  United  States. 


THE  FISHERIES.  235 

It  may  be  quite  admissible  for  the  British  Gov 
ernment,  as  they  are  accustomed  to  do,  to  throw 
off  all  their  responsibilities  on  the  "Law  Officers 
of  the  Crown,"  when  the  question  is  one  of  mere 
domestic  relation  ;  but  it  *  is  dangerous  for  that 
Government  to  do  so  in  matters  affecting  other  Gov 
ernments. 

We  have  already  had  occasion  to  comment  on  the 
very  extraordinary  circumstances  attending  the  fail 
ure  of  the  Law  Officers  of  the  Crown  to  report  upon 
the  case  of  the  Alabama,  and  its  disastrous  influence 
on  the  conduct  of  the  Government. 

As  to  the  opinion  of  the  "Law  Officers  of  the 
Crown  "  in  construction  of  the  fishery  clauses  of  the 
treaty  of  1818,  it  is  difficult  to  say  which  produced 
the  more  amusement  or  amazement  in  the  United 
States,  the  fact  that  the  "Law  Officers"  should  inter 
polate  a  phrase  into  the  treaty  in  order  to  give  to 
their  opinion  its  sole  foundation  to  stand  upon,  or 
that  the  British  Government  should  placidly  accept 
such  fallacious  and  baseless  reasoning  without  chal 
lenge,  and  proceed  in  obedience  to  it  to  enter  into  hos 
tile  maritime  operations,  and  hurry  on  to  the  verge 
of  war  against  the  United  States. 

After  much  agitation  and  discussion,  however,  the 
question  was  settled  for  the  time  being  by  articles 
of  the  Treaty  of  September  9, 1854,  commonly  called 
the  Reciprocity  Treaty,  as  follows : 

"Article  I.  It  is  agreed  by  the  high  contracting  Parties  that, 
in  addition  to  the  liberty  secured  to  the  United  States  fishermen 
by  the  above-mentioned  Convention  of  October  20,1818,  of 


230  THE   TREATY  OF   WASHINGTON. 

taking,  curing,  and  drying  fish  on  certain  coasts  of  the  British 
North  American  Colonies  therein  defined,  the  inhabitants  of 
the  United  States  shall  have,  in  common  with  the  subjects 
of  Her  Britannic  Majesty,  the  liberty  to  take  fish  of  every  kind, 
except  shell-fish,  on  the  sea-coasts  and  shores,  and  in  the  bays, 
harbors,  and  creeks  of  Canada,  New  Brunswick,  Nova  Scotia, 
Prince  Edward's  Island,  and  of  the  several  islands  thereunto 
adjacent  [and,  by  another  article,  Newfoundland],  without  be 
ing  restricted  to  any  distance  from  the  shore,  with  permission 
to  land  upon  the  coasts  and  shores  of  those  Colonies  and  the 
islands  thereof,  and  also  upon  the  Magdalen  Islands,  for  the 
purpose  of  drying  their  nets  and  curing  their  fish ;  provided 
that,  in  so  doing,  they  do  not  interfere  with  the  rights  of  pri 
vate  property,  or  with  British  fishermen  in  the  peaceable  use 
of  any  part  of  the  same  coast  in  their  occupancy  for  the  same 
purpose. 

"It  is  understood  that  the  above-mentioned  liberty  applies 
solely  to  the  sea-fishery,  and  that  the  salmon  and  shad  fisheries, 
and  all  fisheries  in  rivers  and  the  mouths  of  rivers,  are  hereby 
reserved  exclusively  for  British  fishermen." 

Similar  provision  was  made  in  Article  II.,  with  like 
exception,  for  the  admission  of  British  subjects  to 
take  fish  on  a  part  of  the  sea-coasts  and  shores  of  the 
United  States. 

It  was  further  agreed  that  Commissioners  should 
be  appointed,  who  shall 

"  Examine  the  coasts  of  the  North  American  provinces  and 
of  the  United  States  embraced  within  the  provisions  of  the 
first  and  second  articles  of  this  treaty,  and  shall  designate  the 
places  reserved  by  the  said  articles  from  the  common  right  of 
fishing  therein." 

But  these  provisions  were  temporary  only,  being 
subject  to  be  terminated  on  a  year's  notice,  after  the 
expiration  of  ten  years,  and  the  treaty  was  in  fact 


THE    FISHERIES.  237 

denounced  on  the  17th  of  March,  1865,  and  expired 
on  the  17th  of  March,  1866. 

In  truth,  the  United  States  had  purchased  the  fish 
ery  provisions  of  this  treaty  by  other  provisions  to 
the  effect  that  certain  enumerated  articles  of  the 
growth  and  produce  of  the  British  Colonies  of  Cana 
da,  New  Brunswick,  Nova  Scotia,  Prince  Edward's 
Island,  and  Newfoundland,  or  of  the  United  States, 
should  be  "  admitted  into  each  country  respectively 
free  of  duty." 

But  the  reciprocity  here  was  nearly  nominal,  the 
great  benefits  of  the  provision  inuring  to  the  British 
Colonies.  The  fisheries  had  come  to  be  the  incident 
of  a  larger  question,  namely,  that  of  the  terms  of  com 
mercial  intercourse  between  the  United  States  and 
the  British  Colonies  in  North  America. 

Dissatisfaction  in  the  United  States  with  this  state 
of  things  led  to  the  denouncement  of  the  treaty,  and 
to  the  revival  of  a  controversy  between  the  two  Gov 
ernments  regarding  the  fisheries :  which  controversy 
was  terminated  by  the  Treaty  of  Washington. 

PROVISIONS   OF   THE   TREATY   OF   WASHINGTON. 

By  Articles  XVIIL,  XIX.,  and  XX.,  the  fishery 
stipulations  of  the  Treaty  of  September  9,  1854,  are 
in  substance  revived,  with  further  provision  for  the 
appointment  of  a  Commission  to  settle  any  outstand 
ing  question  as  to  the  "  places  "  of  fishery  reserved  by 
either  Government. 

It  is  further  agreed  that  fish  -  oil  and  fish  of  all 
kinds,  except  fish  of  the  inland  lakes  and  of  the  riv- 


238  THE   TREATY   OF  WASHINGTON. 

ers  falling  into  them,  and  except  fish  preserved  in  oil, 
being  the  produce  of  the  fisheries  of  the  United 
States,  or  of  the  Dominion  of  Canada,  or  of  Prince 
Edward's  Island,  shall  be  admitted  in  each  country 
respectively  free  of  duty. 
Then  follows : 

"Article  XXII.  Inasmuch  as  it  is  asserted  by  the  Govern 
ment  of  Her  Britannic  Majesty  that  the  privileges  accorded 
to  the  citizens  of  the  United  States  under  Article  XVIII.  of 
this  Treaty  are  of  greater  value  than  those  accorded  by  Arti 
cles  XIX.  and  XXI.  of  this  Treaty  to  the  subjects  of  Her  Bri 
tannic  Majesty,  and  this  assertion  is  not  admitted  by  the  Gov 
ernment  of  the  United  States,  it  is  further  agreed  that  Com 
missioners  shall  be  appointed  to  determine,  having  regard  to 
the  privileges  accorded  by  the  United  States  to  the  subjects 
of  Her  Britannic  Majesty,  as  stated  in  Articles  XIX.  and  XXI. 
of  this  Treaty,  the  amount  of  any  compensation  which,  in  their 
opinion,  ought  to  be  paid  by  the  Government  of  the  United 
States  to  the  Government  of  Her  Britannic  Majesty  in  return 
for  the  privileges  accorded  to  the  citizens  of  the  United  States 
under  Article  XVIII.  of  this  Treaty ;  and  that  any  sum  of 
money  which  the  said  Commissioners  may  so  award  shall  be 
paid  by  the  United  States  Government,  in  a  gross  sum,  within 
twelve  months  after  such  Award  shall  have  been  given.'3 

The  Commissioners  referred  to  in  this  article  are 
to  be  appointed,  one  by  each  of  the  two  Govern 
ments,  and  the  third  by  the  two  Governments  con 
jointly,  or,  in  case  of  disagreement  between  them,  by 
the  Minister  at  London  of  the  Emperor  of  Austria 
and  Hungary.  The  Commission  is  to  sit  at  Halifax, 
in  the  Province  of  Nova  Scotia. 

With  this  provision  ends  the  list  of  Governments 
concerned  in  this  truly  international  Treaty,  which,  in 
the  interests  of  peace,  engages  the  co-operation  of 


THE  FISHERIES.  239 

eight    sovereign    States,  namely,  Italy,  Switzerland, 

Brazil,  Sweden    and   Norway,  Spain,  Austria    and 
Hungary,  Great  Britain,  and  the  United  States. 

PROBABLE   AMOUNT  OF  INDEMNITY. 

The  peculiarity  of  the  arrangement,  we  see,  is  that 
the  United  States  are  to  make  compensation  to  Great 
Britain  for  any  excess  in  value  of  the  privileges  of 
fishery  accorded  to  the  United  States  above  those 
accorded  to  Great  Britain.  One  party  asserts,  the 
other  denies,  such  excess  of  value. 

This  question  involves  examination  of  facts,  but  it 
also  suggests  inquiry  of  right. 

What  are  the  privileges  which  the  United  States 
acquire  under  Article  XVIII.  of  the  Treaty  of  Wash 
ington  \  Certainly  not  any  which  they  possessed  al 
ready. 

Now,  in  virtue  of  subsisting  stipulations  of  the 
Treaty  of  1818,  we  possessed  the  recognized*  right  of 
fishery  along  the  coasts,  and  in  the  bays,  harbors,  and 
creeks  of  British  North  America,  subject,  in  so  far  as 
regards  the  present  question,  only  to  the  renunciation 
which  we  made  in  that  treaty  of  the  liberty  previ 
ously  enjoyed  or  claimed,  to  take,  dry,  or  cure  fish  on 
or  within  three  marine  miles  of  the  coasts,  bays, 
creeks,  or  harbors  of  certain  defined  parts  of  the 
shores  of  British  America.  The  Treaty  of  Washing 
ton  removes  this  limitation.  Hereafter  we  are  to 
fish  on  the  sea-coasts  and  shores,  and  in  the  bays, 
harbors,  and  creeks,  previously  subject  to  limitation 
of  three  marine  miles,  "  without  being  restricted  to 


240         THE  TREATY  OF  WASHINGTON. 

any  distance  from  the  shore."  But  we  are  not  re 
quired  to  pay  for  any  relinquishment  on  the  part  of 
Great  Britain  of  the  fictitious  claim  founded  on  the 
erroneous  opinion  of  the  Law  Officers  of  the  Crown, 
which,  on  the  false  assumption  that  "headlands"  are 
mentioned  in  the  Treaty  of  1818,  extends  an  imagi 
nary  line  seaward  three  marine  miles  from  each  cape 
of  bays  and  indents  of  the  coast,  joins  the  extremities 
of  those  two  lines  by  a  straight  line,  and  then  re- 
quires  our  fishermen  to  keep  outside  of  this  connect 
ing  line.  Deluded  by  that  opinion,  the  British  Gov 
ernment,  indeed,  absurdly  undertook  to  exclude  us 
by  force  from  the  Bay  of  Fundy,  but  failed  to  main 
tain  its  pretension  in  that  respect. 

What  we  purchase  is  the  right  to  enter  and  fish  with 
in  the  three  marine  miles  of  the  shores  at  the  bottom 
of  certain  lays,  harbors,  and  creeks  (from  which  alone 
we  were  excluded  by  the  Treaty  of  1818),  disregard 
ing  wholly  the  opinion  of  the  Law  Officers  of  the 
Crown.  Looking  at  the  clause  under  consideration, 
in  this  its  only  proper  light,  it  is  plain  that  it  can 
not  impose  any  serious  charge  on  the  United  States. 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION. 


CHAPTER  VI. 

COMMERCIAL  INTERCOURSE  AND  TRANSPOR 
TATION. 

TREATY   PROVISIONS. 

SUNDRY  stipulations  of  the  Treaty  which  relate  to 
rights  of  navigation,  and  of  transport  by  land  or  water, 
— to  concessions  of  commercial  intercourse  and  trans 
it, — or  to  the  free  interchange  of  objects  of  produc 
tion, — are  divisible  into,  first,  permanent  provisions, 
and,  secondly,  temporary  provisions. 

1.  Of  permanent  provisions  we  have  the  following: 

[a]  Great  Britain  engages  tha.t  the  navigation  of 
the  River  St.  Lawrence,  ascending  and  descending, 
from  the  point  where  it  ceases  to  form  the  boundary 
between  the  two  countries,  shall  forever  remain  free 
and  open  for  the  purpose  of  commerce  to  the  citizens 
of  the  United  States  [Art.  XXVI.]. 

The  United  States  engage  that  the  Rivers  Yukon, 
Porcupine,  and  Stikine,  in  Alaska,  ascending  and  de 
scending  from,  to,  and  into  the  sea,  shall  forever  re 
main  free  and  open  for  the  purpose  of  commerce  to 
the  subjects  of  Great  Britain  [Art.  XXVI]. 

Rights  of  local  police  and  regulation  are  reserved 
by  each  Government. 

[£]  The  United  States  engage  that  the   subjects 

Q 


242  THE   TREATY   OF   WASHINGTON. 

of  Great  Britain  shall  enjoy  the  use  of  the  St.  Clair 
Flats'  Canal  on  terms  of  equality  with  the  inhabitants 
of  the  United  States  [Art.  XXVII.]. 

[c]  The  United  States  engage  to  urge  on  the  State 
Governments,  and  Great  Britain  engages  to  urge  on 
the  Dominion  of  Canada,  to  secure  each  to  the  sub 
jects  or  citizens  of  the  other  the  use.  on  equal  terms 
of  the  several  canals  connected  with  the  lakes  or  riv 
ers  traversed  by  or  contiguous  to  the  boundary-line 
between  the  possessions  of  the  high  contracting  Par 
ties  [Art.  XXVII.]. 

All  these  are  provisions  which  bring  the  United 
States  and  the  Dominion  of  Canada  into  fixed  rela 
tions  independent  of  and  superior  to  all  questions  of 
Governments. 

2.  Of  temporary  provisions  we  have  the  following: 

\a\  The  navigation  of  Lake  Michigan  is  declared 
free  and  open  for  the  purposes  of  commerce  to  the 
subjects  of  Great  Britain  [Art.  XXVIII.]. 

[&]  Goods,  wares,  and  merchandise  arriving  at  the 
ports  of  New  York,  Boston,  Portland,  or  such  other 
ports  as  the  President  may  designate,  and  destined 
for  the  British  possessions  in  North  America,  may  be 
entered  at  the  proper  custom-house  without  payment 
of  duties,  and  conveyed  in  transit  through  the  terri 
tory  of  the  United  States  [Art.  XXIX.]. 

And,  in  like  manner,  goods,  wares,  and  merchandise 
arriving  at  any  of  the  ports  of  the  British  possessions 
in  North  America,  and  destined  for  the  United  States, 
may  be  entered  at  the  proper  custom  -  house,  and 
conveyed  in  transit  without  the  payment  of  duties 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION. 

through  the  said  possessions ;  and  goods,  wares,  and 
merchandise  may  be  conveyed  in  transit  without  pay 
ment  of  duties,  from  the  United  States  through  the 
said  possessions  to  other  places  in  the  United  States, 
or  for  export  from  ports  in  the  said  possessions  [Art. 
XXIX.]. 

All  these  rights  of  transit  are,  of  course,  subject  to 
such  regulations  for  the  protection  of  the  revenue  as 
the  respective  Governments  may  prescribe. 

[c]  Great  Britain  engages  to  urge  on  the  Dominion 
of  Canada  and  the  Province  of  New  Brunswick  that 
no  export  duty  or  other  duty  shall  be  levied  on  tim 
ber  cut  in  that  part  of  the  American  territory  in  the 
State  of  Maine  watered  by  the  River  St.  John  and  its 
tributaries,  and  floated  down  that  river  to  the  sea, 
when  the  same  is  shipped  to  the  United  States  from 
the  Province  of  New  Brunswick. 

[<7]  Subjects  of  Great  Britain  may  carry  in  British 
vessels,  without  payment  of  duty,  goods,  wares,  or 
merchandise  from  one  port  or  place  within  the  terri 
tory  of  the  United  States  upon  the  St.  Lawrence,  the 
Great  Lakes,  and  the  rivers  connecting  the  same,  to 
another  port  or  place  within  the  territory  of  the 
United  States,  provided  that  a  portion  of  such  trans 
portation  is  made  through  the  Dominion  of  Canada 
by  land  carriage  and  in  bond  [Art.  XXX.]. 

Citizens  of  the  United  States  may  carry  in  United 
States  vessels  goods,  wares,  or  merchandise  from  one 
port  or  place  within  the  British  possessions  in  North 
America  to  another  port  or  place  within  the  said 
possessions,  provided  that  a  portion  of  such  transpor- 


244  THE   TREATY   OF   WASHINGTON. 

tation  is  made  through  the  territory  of  the  United 
States  by  land  carriage  and  in  bond  [Art.  XXX.]. 

The  United  States  engage  not  to  impose  any  export 
duties  on  goods,  wares,  or  merchandise  carried  under 
this  article  through  the  territory  of  the  United 
States;  and  Great  Britain  engages  to  urge  the  Do 
minion  of  Canada  and  the  other  British  Colonies  not 
to  impose  any  export  duty  on  goods,  wares,  or  mer 
chandise  carried  under  this  article. 

It  being  understood  that  these  respective  rights  of 
transit  are  to  be  regulated  by  the  two  Governments ; 
and  that  on  the  part  of  the  United  States  the  right 
of  transit  will  be  suspended  unless  the  Dominion  of 
Canada  should  establish  the  exemption  from  export 
duties  required,  and  unless  the  Dominion  shall  open 
its  canals  on  equal  terms  to  citizens  of  the  United 
States,  and  unless  the  Dominion  and  the  Province  of 
New  Brunswick  shall  free  from  all  duties  the  timber 
cut  on  the  St.  John  in  the  State  of  Maine  and  export 
ed  to  the  United  States  [Arts.  XXX.  and  XXXI.]. 

All  the  provisions  of  the  Treaty  from  Articles 
XVIII.  to  XXL  inclusive,  and  Article  XXX., — that  is 
to  say,  the  articles  regarding  the  fisheries 'and  recip 
rocal  right  of  transit, — are  to  take  effect  so  soon  as  the 
laws  required  to  carry  them  into  operation  shall  have 
been  passed  by  the  Parliament  of  Great  Britain,  by 
that  of  Canada,  and  by  the  Legislature  of  Prince  Ed 
ward's  Island,  on  the  one  hand,  and  by  the  Congress 
of  the  United  States  on  the  other. 

Such  assent  having  been  given,  such  articles  shall 
remain  in  force  for  the  period  of  ten  years  from  the 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    245 

date  at  which-  they  may  come. into  operation,  and  fur 
ther  until  the  expiration  of  two  years  after  either  of 
the  Parties  shall  have  given  to  the  other  notice  of  its 
desire  to  terminate  the  same :  which  either  may  give 
at  the  end  of  the  said  ten  years  or  at  any  time  after 
ward  [Art.  XXXIII.]. 

Temporary  as  these  provisions  are,  or  at  least  ter 
minable  at  the  will  of  either  Party,  they  are  equitable 
in  themselves,  and  advantageous  both  to  the  United 
States  and  the  Canadian  Dominion ;  and,  like  the 
permanent  provisions  of  the  Treaty  explained  in  this 
chapter,  they  tend  to  draw  the  two  countries  closer, 
and  closer  together. 

The  germ  of  the  Treaty  of  Washington,  it  is  to  be 

remembered,  was  the  su^estion  of  the  British  Gov- 
»  ~~ 

ernment  through  Sir  John  Rose,  a  former  Canadian 
Minister,  whose  proposal  related  only  to  pending 
questions  affecting  the  British  possessions  in  North 
America,  not  Great  Britain  herself. 

What  these  questions  were  we  partly  understand  by 
the  stipulations  of  the  Treaty,  the  whole  of  which,  ex 
cept  those  growing  out  of  incidents  of  the  late  Civil 
War,  are  of  interest  to  Canada,  including  the  maritime 
Provinces,  primarily  if  not  exclusively,  although  re 
quiring  to  be  treated  in  the  name  of  Great  Britain. 

To  the  arrangements  actually  made,  Canada  would 
have  preferred,  of  course,  revival  of  the  Elgin-Marcy 
Reciprocity  Treaty,  involving  the  admission  into  each 
country,  free  of  duty,  of  numerous  articles,  being  the 
growth  and  produce  of  the  British  Colonies  or  of  the 
United  States.  It  was  the  desire  of  Canada  to  have 


246  THE   TREATY   OF  WASHINGTON. 

provision  made  for  alleged  claims  on  account  of  the 
acts  of  the  Fenians.  But  the  United  States  would 
not  listen  to  either  of  these  propositions :  so  that  the 
Dominion  had  opportunity  to  allege  that  she  was 
sacrificed  to  the  Metropolis,  and  thus  to  obtain,  by 
way  of  compensation,  the  guaranty  on  the  part  of  the 
Imperial  Government  of  a  large  loan  for  the  construc 
tion  of  the  proposed  trans-continental  railway  from 
the  Great  Lakes  to  the  Pacific  Ocean. 

In  some  respects,  the  arrangements  we  have  been 
considering  resemble  those  of  the  Reciprocity  Treaty ; 
but  they  are  much  more  comprehensive,  and  they  are 
better  in  other  respects. 

We  have  placed  the  question  of  the  fisheries  on  an 
independent  footing.  If  the  American  fisheries  are  of 
inferior  value  to  the  British, — which  we  do  not  con 
cede, — then  we  are  to  pay  the  difference.  But  the 
fishery  question  is  no  more  to  be  employed  by  the 
Dominion  of  Canada,  as  it  has  been  heretofore,  either 
as  a  menace  or  as  a  lure,  in  the  hope  of  thus  inducing 
the  United  States  to  revive  the  Reciprocity  Treaty. 

Apart  from  other  new  provisions  in  the  Treaty  of 
Washington  of  less  moment,  there  is  the  all-important 
one,  stipulating  for  reciprocal  right  of  commercial 
transit  for  subjects  of  Great  Britain  through  the 
United  States,  and  for  citizens  of  the  United  States 
through  the  Dominion :  in  view  of  which  Sir  John 
Macdonald  has  no  cause  to  regret  his  participation 
in  the  negotiation  of  the  Treaty. 

Sir  Stafford  North  cote,  in  the  late  debate  on  the 
Queen's  speech,  repels  with  force  and  truth  the  sug- 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    247 

gestion  of  Lord  Bury  that  the  Treaty  of  Washington 
is  unjust  to  Canada.  He  shows,  on  the  contrary,  that 
the  Treaty  is  beneficial  and  acceptable  to  the  Domin 
ion,  specifying  particulars,  and  citing  the  approbatory 
votes  of  the  legislative  assemblies  of  the  Canadian 
and  maritime  Provinces. 

But  the  United  States  will  never  make  another 
treaty  of  reciprocal  free  importation,  without  includ 
ing  manufactures  and  various  other  objects  of  the 
production  of  the  United  States  not  comprehended  in 
the  schedule  of  the  Elgin -Marcy  Treaty.  In  fine, 
Canada  must  expect  nothing  of  this  nature  short  of  a 
true  zottverein  involving  serious  modifications  of  the 

v_> 

commercial  relations  of  Canada  to  Great  Britain. 

RELATION   OF   THE   BRITISH   PROVINCES   TO   THE   UNITED 

STATES. 

The  Dominion  of  Canada  is  one  of  those  "  Posses 
sions,"  as  they  are  entitled,  of  Great  Britain  in  Amer 
ica,  which,  like  Jamaica  and  other  West  India  Islands, 
have  ceased  to  be  of  any  economic  value  to  her  save 
as  markets, — which  in  that  respect  would  be  of  al 
most  as  much  value  to  her  in  a  state  of  independence, 
— which  she  has  invited  and  encouraged  to  assume 
the  forms  of  semi-independent  parliamentary  govern 
ment, — which,  on  the  whole,  are  at  all  times  a  charge 
to  her  rather  than  a  profit,  even  in  time  of  peace,— 
which  would  be  a  burden  and  a  source  of  embarrass 
ment  rather  than  a  force  in  time  of  war, — and  which, 
therefore,  she  has  come  to  regard,  not  with  complete 
carelessness  perhaps,  but  with  sentiments  of  kindli- 


248  THE   TREATY   OF  WASHINGTON. 

ness  and  good-will,  rather  than  of  the  jealous  tena- 
ciousness  of  sovereign  power.  When  the  Dominion 
shall  express  desire  to  put  on  the  dignity  of  a  sover 
eign  State,  she  will  not  encounter  any  obstacles  on 
the  part  of  the  Metropolis. 

In  regard  to  the  Dominion  of  Canada,  as  to  the 
Colonies  of  Australasia,  the  power  of  the  Metropolis 
appears  there  chiefly  in  the  person  of  the  Governor, 
and  in  the  occasional  annulment  of  laws  of  the  local 
legislatures  deemed  incompatible  with  those  of  the 
Empire.  On  the  other  hand,  the  Colonies,  which  have 
necessary  relations  of  their  own  with  neighboring 
Governments,  as  in  the  case  of  Canada  relatively 
to  the  United  States,  can  not  treat  thereon  them 
selves,  as  their  interests  require  they  should,  but 
must  act  through  the  intervention  of  the  Metropolis, 
which,  in  this  respect,  may  have  other  interests  of  its 
own  superior  and  perhaps  injurious  to  those  of  the 
Colonies. 

Meanwhile  the  Dominion  has  now  to  provide  for 
the  cost  of  her  own  military  defense,  and  that,  not 
against  any  enemies  of  her  own,  but  against  possible 
enemies  of  the  Mother  Country.  The  complications 
of  European  or  of  Asiatic  politics  may  thus  envelop 
the  Dominion  in  disaster,  for  causes  wholly  foreign  to 
her,  as  much  so  as  if  she  were  a  sovereign  State.  In 
such  an  emergency,  the  Dominion  would  be  tempted 
to  assume  an  attitude  of  neutrality,  if  not  of  indepen 
dence. 

All  these  considerations  show  how  slender  is  the 
tie  which  attaches  the  Dominion  to  Great  Britain. 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    249 

The  entire  history  of  all  European  Colonies  in 
America  proves  that  the  sentiment  of  nationality,  that 
is,  of  attachment  to  the  Mother  Country,  is  very  weak, 
and  readily  yields  place  to  other  sentiments  of  ambi 
tion,  interest,  or  passion,  so  as  to  produce  feelings  of 
hostility  between  the  inhabitants  of  the  Metropolis 
and  those  of  the  Colonies  more  intense  than  such  as 
exist  between  either  of  them  and  the  inhabitants  of 
other  countries.  This  fact  is  particularly  remarkable 
in  the  incidents  of  revolution  in  Spanish  America,  ex 
ample  of  which  we  have  now  before  the  eyes  in  the 
insurrection  which  rages  in  Cuba.  But  the  same  fact 
appears  distinctly  in  the  past  history  of  British 
America.  And  there  is  no  reason  to  suppose  that 
the  sentiment  of  mere  loyalty,  that  is,  political  attach 
ment  to  the  Mother  Country,  is  any  more  strong  at 
present  in  the  Dominion  of  Canada  than  it  formerly 
was  in  the  British  Colonies  now  constituting  the 
United  States. 

M.  H.  Blerzy,  in  a  very  instructive  essay  on  the 
Colonies  of  the  British  Empire,  discussing  the  question 
whether  the  English  beyond  sea  are  likely  to  remain 
attached  to  England  by  recollections  of  family  or  of 
country,  observes  with  great  truth  that  "  the  very 
aptitude  for  colonization  of  which  the  English  are 
so  proud  could  not  exist  without  implying  a  cer 
tain  -insouciance  of  family  on  their  part  and  disdain 
of  their  native  country." 

How  true  is  this  remark!  It  is  illustrated  by 
contrasting  the  devoted  attachment  of  the  French  to 
France,  who  in  our  day  send  so  few  colonists  to 


250  THE   TREATY  OF  WASHINGTON. 

America,  and  those  chiefly  Basque's,  while  hundreds 
of  thousands  annually  emigrate  from  Great  Britain. 

Loyal  Canadians,  that  is,  loyal  to  Great  Britain, 
must  of  necessity  take  into  account  this  fact,  which  is 
of  the  very  essence  of  British  colonization  in  Amer 
ica.  They  are  also  compelled  to  regard  another  se 
rious  fact  of  the  same  order  of  ideas,  namely,  the  con 
tinual  emigration  from  Canada  to  the  United  States, 
not  only  on  the  part  of  recent  immigrants  from  Great 
Britain,  but, — which  is  more  noticeable  as  a  sign  of 
the  times, — the  emigration  of  old  Canadians,  natives 
of  the  soil,  in  spite  of  all  the  efforts  of  the  Govern 
ment  to  check  and  discourage  it. 

On  the  other  hand,  the  history  of  all  European  col 
onization  shows  that  a  time  comes  when  the  Mother 
Country  grows  more  or  less  indifferent  to  the  fate  of 
her  Colonies,  which  time  appears  to  have  arrived  in 
Great  Britain  as  respects  the  Dominion. 

When  Canada  complains  [without  cause]  that 
her  wishes  have  been  disregarded  and  her  interests 
prejudiced  by  the  stipulations  of  the  Treaty  of 
Washington,  the  great  organ  of  opinion  in  England 
replies : 

"From  this  day  forth  look  after  your  own  busi 
ness  yourselves :  you  are  big  enough,  you  are  strong 
enough,  you  are  intelligent  enough,  and,  if  there  were 
any  deficiency  in  either  of  these  points,  it  would  be 
supplied  by  the  education  of  self-reliance.  We  are 
both  now  in  a  false  position,  and  the  time  has  ar 
rived  when  we  should  be  relieved  from  it.  Take  up 
your  freedom :  your  days  of  apprenticeship  are  over" 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    251 

Instances  might  be  cited  of  the  expression  of  sim 
ilar  ideas  in  Parliament. 

Loyalists  in  Canada  must  remember  another  thing. 
Montesquieu,  with  the  singular  penetration  which 
distinguished  him,  perceives  that  England  imparts  to 
her  Colonies  "la  forme  de  son  Government,"  by 
means  of  which  "  on  verroit  se  former  de  grands  peu- 
pies  dans  les  forets  meines  qu'elle  enverroit  habiter." 
But  the  parliamentary  form  of  Government,  which 
has  contributed  so  greatly  to  the  growth  and  strength 
of  British  Colonies,  gave  to  them  facilities  of  success 
ful  rebellion, — that  is,  of  separation  from  the  Metrop 
olis, — which  no  other  form  of  government  could  im 
part,  and  the  absence  of  which  in  Spanish  America 
[and  now  in  Cuba]  has  done  so  much  to  impede  and 
•obstruct  their  separation  from  Spain.  We  had  ex 
perience  of  this  in  our  Revolution,  where  each  of  the 
Colonies  had  a  governmental  organization  so  com- 

o  o 

plete  that,  in  order  to  be  independent  de  facto,  it 
needed  only  to  ship  off  the  British  Governor.  The 
same  fact  was  apparent  in  our  Secession  War,  as  M. 
de  Tocqueville  had  predicted.  And,  at  this  time,  the 
Dominion  of  Canada  needs  only  to  substitute  for  a 
British  Governor  one  of  her  own  choice  to  become 
a  sovereign  State  organized  as  completely  as  Great 
Britain  herself. 

There  is  another  class  of  considerations  of  great 
importance. 

War  between  the  United  States  and  Great  Britain 
is  now  a  contingency  almost  inadmissible  as  supposi 
tion,  and  so,  of  course,  is  war  between  the  United 


252  THE   TREATY   OF  WASHINGTON. 

States  and  Canada,  a  possession  *  of  Great  Britain. 
Nevertheless,  the  capability  of  a  country  to  main 
tain  itself  by  force,  if  need  be,  is  one  of  the  elements 
of  its  political  life,  and  therefore  can  not  be  over- 
looked  in  considering  the  condition  of  the  Dominion 
of  Canada.  * 

In  regard  to  Canada  the  inquiry  is  the  more  impor 
tant,  seeing  that  military  force  depends  in  part  on 
geographical  facts,  which,  in  her  case,  equally  as  to 
peace  or  war,  and  for  the  same  reasons,  place  her  at 
disadvantage  on  the  side  of  the  United  States. 

The  British  possessions  in  North  America,  begin 
ning  with  Newfoundland  on  the  Atlantic  Ocean,  and 
ending  with  Queen  Charlotte's  Island  on  the  Pacific, 
extend  across  the  continent  in  its  broadest  part,  a 
distance  of  80°  of  longitude,  but  in  a  high  latitude, 
occupying  the  whole  of  the  country  north  of  the  ter 
ritory  of  the  United  States.  The  space  thus  described 
looks  large  on  the  map ;  but  the  greater  part  of  it  is 
beyond  the  limit  of  the  growth  of  trees,  and  much  of 
the  residue  is  too  cold  to  constitute  a  chosen  residence 
for  Europeans. 

In  a  word,  the  Dominion  stretches,  along  thousands 
of  miles,  without  capability  of  extension  on  the  one 
side,  where  it  meets  the  frozen  north,  or  on  the  other, 
where  it  is  stopped  by  the  United  States.  As  a 
country,  it  resembles  a  mathematical  line,  having 
length  without  breadth. 

Meanwhile,  owing  to  their  internal  position,  their 
northern  latitude,  and  the  geographical  configuration 
of  the  whole  country,  the  two  great  Provinces  of  On- 


COMMERCIAL  INTERCOURSE  AXD  TRANSPORTATION.    25£ 

tario  and  Quebec  Have  no  access  to  the  sea  in  the  long 
winter,  save  through  the  United  States. 

Thus,  if  it  be  possible  to  conceive  of  two  countries, 
which  would  appear  to  be  naturally  destined  to  con 
stitute  one  Government,  they  are  the  United  States 
and  the  British  Provinces,  to  the  special  advantage 
of  the  latter  rather  than  the  former. 

We  therefore  can  afford  to  wait.  We  have  nothing 
to  apprehend  from  the  Dominion  Pacific  Railway :  if 
constructed,  it  will  not  relieve  Ontario  and  Quebec 
from  their  transit  dependence  on  the  United  States. 
We  welcome  every  sign  of  prosperity  in  the  Domin 
ion.  With  the  natural  limitations  to  her  growth,  and 
the  restricted  capacity  of  her  home  or  foreign  mar 
kets,  her  prosperity  will  never  be  sufficient  to  prevent 
her  landowners  and  her  merchants  from  looking  wist 
fully  toward  the  more  progressive  population  and  the 
more  capacious  markets  of  the  United  States.  Her 
conspicuous  public  men  may  be  sincerely  loyal  to  the 
British  Crown ;  many  of  the  best  men  of  Massachu 
setts,  New  York,  and  Virginia  were  so  at  the  opening 
of  the  American  Revolution  ;  but  neither  in  French 
Canada,  nor  in  British  Canada,  nor  in  the  maritime 
Provinces,  do  any  forces  of  sentiment  or  of  interest 
exist  adequate  to  withstand  those  potent  natural  and 
moral  causes,  or  to  arrest  that  fatal  march  of  events, 
which  have  rendered  nearly  all  the  rest  of  America 
independent  of  Europe,  and  can  not  fail,  sooner  or 
later,  to  reach  the  same  consummation  in  the  Domin 
ion  of  Canada. 

The  spirit  of  independence  is  a  rising  tide,  in  Can- 


254:  THE   TREATY   OF   WASHINGTON. 

ada  as  elsewhere  in  America,  which  you  see  in  its  re 
sults,  if  not  in  its  progress.  It  is  like  the  advancement 
of  the  sun  in  the  sky,  imperceptible  as  movement,  but 
plain  as  to  stages  and  ultimate  destination.  It  is  not 
an  effect  actively  produced  by  the  United  States.  It 
is  an  event  which  we  would  not  precipitate  by  violence 
if  we  could,  and  which  we  scarcely  venture  to  say  we 
wish  for,  lest  in  so  doing  we  should  possibly  wound 
respectable  susceptibilities;  but  which  we  neverthe 
less  expect  to  hail  some  day  with  hearty  gratulation, 
as  an  event  auspicious  alike  to  the  Dominion  and  to 
the  United  States. 

If  Lord  Milton's  appreciation  of  the  course  of  events 
be  correct, — and  no  person  has  written  more  intelli 
gently  or  forcibly  on  the  British  side  of  these  ques 
tions  than  he, — the  consummation  is  close  at  hand. 
Arguing  from  the  British  stand-point  of  the  San  Juan 
Question,  he  says : 

"  If  Great  Britain  retains  the  Island  of  San  Juan  and  the 
smaller  islands  of  the  archipelago  lying  west  of  the  compromise 
channel  proposed  by  Lord  Russell,  together  with  Patos  Island 
and  the  Sucia  group,  she  will  preserve  her  power  upon  the 
Pacific,  and  will  not  in  any  way  interfere  with  or  menace  the 
harbors  or  seas  which  appertain  to  the  United  States.  If,  on 
the  other  hand,  these  islands  should  become  United  States  ter 
ritory,  the  highway  from  the  British  possessions  on  the  main 
land  will  be  commanded  by,  and  be  at  the  mercy  of  that 
Power.  .  .  . 

"  Such  a  condition  of  affairs  must  inevitably  force  British 
Columbia  into  the  United  States  federation ;  and  the  valuable 
district  of  the  Saskatchewan  .  .  .  must,  ex  necessitate  rei,  fol 
low  the  fortunes  of  British  Columbia.  Canada,  excluded  from 
the  Pacific,  and  shut  in  on  two  sides  by  United  States  terri 
tory,  must  eventually  follow  the  same  course."  « 


COMMERCIAL  INTERCOURSE  AXD  TRANSPORTATION.     955 

In  contemplation  of  these  results,  it  is  difficult  to 
see  how  any  American  should  fail  on  reflection  to 
approve  the  Treaty  of  Washington. 

"Two  rival  Powers,"  says  Provost  Paradol,  "but  which  are 
but  one  at  the  point  of  view  of  race,  of  language,  of  customs,  and 
of  laws,  predominate  on  this  planet  outside  of  Europe.  .  .  . 
Destiny  has  pronounced ;  and  two  parts  of  the  world  at  least, 
America  and  Oceanica,  belong  without  remedy  to  the  British 
race.  .  .  .  But  the  actual  ascendancy  of  that  race  is  but  a  feeble 
image  of  what  a  near  future  reserves  to  it." 

The  time  is  not  remote  when  the  United  States 
and  the  Dominion  of  Canada  will  be  associated  in 
these  great  destinies,  whether  in  close  alliance  or  in 
more  intimate  union,  it  matters  little:  when  "Amer 
ica,"  like  "Italy,"  shall  cease  to  be  a  mere  geograph 
ical  denomination,  and  will  comprehend,  in  a  mighty 
and  proud  Republic,  the  whole  combined  British 
race  of  North  America, 

But,  glorious  as  such  a  consummation  would  be,  I 
would  not  have  it  to  be  save  with  the  cordial  con 
currence  of  the  people  of  the  Dominion,  and  the  con 
tented  acquiescence  at  least  of  Great  Britain.  There 
is  many  a  page  of  superlative  triumph  in  the  annals 
of  the  British  Isles, — that  England,  Scotland,  and  Ire 
land  of  which  %we  in  the  New  World  once  were,— 
but  not  one  of  her  days  of  victory  can  equal  in  lustre 
that  of  the  day  when  Great  Britain,  not  less  proud 
of  us,  "  the  fairest  of  her  daughters,"  than  of  herself, 
shall  extend  the  right  hand  of  welcome  and  affection 
to  L  n  ited  America. 


OF   THE 

((UNIVERSITY 


APPENDIX. 


TREATY  BETWEEN  THE  UNITED  STATES 
AND  GREAT  BRITAIN. 

CONCLUDED  MAT  8,  1871;  RATIFICATIONS  EXCHANGED  JUNE  17, 1871; 
PROCLAIMED  JULY  4, 1871. 


BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
A  PROCLAMATION. 

WHEREAS  a  Treaty,  between  the  United  States  of  America  and  Her  Majesty 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  concerning  the 
settlement  of  all  causes  of  difference  between  the  two  countries,  was  concluded 
and  signed  at  Washington  by  the  High  Commissioners  and  Plenipotentiaries 
of  the  respective  Governments  on  the  eighth  day  of  May  last ;  which  Treaty 
is,  word  for  word,  as  follows  : 

The  United  States  of  America  and  Her  Britannic  Majesty,  being  desirous  to 
provide  for  an  amicable  settlement  of  all  causes  of  difference  between  the  two 
countries,  have  for  that  purpose  appointed  their  respective  Plenipotentiaries,  that 
is  to  say:  the  President  of  the  United  States  has  appointed,  on  the  part  of  the 
United  States,  as  Commissioners  in  a  Joint  High  Commission  and  Plenipoten 
tiaries,  Hamilton  Fish,  Secretary  of  State ;  Robert  Cumming  Schenck,  Envoy 
Extraordinary  and  Minister  Plenipotentiary  to  Great  Britain ;  Samuel  Nelson, 
an  Associate  Justice  of  the  Supreme  Court  of  the  United  States ;  Ebenezer 
Rockwood  .Hoar,  of  Massachusetts  ;  and  George  Henry  Williams,  of  Oregon  ; 
and  Her  Britannic  Majesty,  on  her  part,  has  appointed  as  her  High  Commis 
sioners  and  Plenipotentiaries,  the  Right  Honorable  George  Frederick  Samuel, 
Earl  de  Grey  and  Earl  of  Ripon,  Viscount  Goderich,  Baron  Grantham,  a  Bar 
onet,  a  Peer  of  the  United  Kingdom,  Lord  President  of  Her  Majesty's  Most 
Honorable  Privy  Council,  Knight  of  the  Most  Noble  Order  of  the  Garter, 
etc.,  etc. ;  the  Right  Honorable  Sir  Stafford  Henry  Xorthcote,  Baronet,  one  of 
Her  Majesty's  Most  Honorable  Privy  Council,  a  Member  of  Parliament,  a  Com 
panion  of  the  Most  Honorable  Order  of  the  Bath,  etc.,  etc. ;  Sir  Edward  Thorn- 

R 


258  APPENDIX. 

ton,  Knight  Commander  of  the  Most  Honorable  Order  of  the  Bath,  Her  Majes 
ty's  Envoy  Extraordinary  and  Minister  Plenipotentiary  to  the  United  States 
of  America ;  Sir  John  Alexander  Macdonald,  Knight  Commander  of  the  Most 
Honorable  Order  of  the  Bath,  a  member  of  Her  Majesty's  Privy  Council  for 
Canada,  and  Minister  of  Justice  and  Attorney-General  of  Her  Majesty's  Do 
minion  of  Canada ;  and  Mountague  Bernard,  Esquire,  Chichele  Professor  of  In 
ternational  Law  in  the  University  of  Oxford. 

And  the  said  Plenipotentiaries,  after  having  exchanged  their  full  powers,  which 
were  found  to  be  in  due  and  proper  form,  have  agreed  to  and  concluded  the 
following  articles : 

ARTICLE  I. 

Whereas  differences  have  arisen  between  the  Government  of  the  United  States 
and  the  Government  of  Her  Britannic  Majesty,  and  still  exist,  growing  out  of 
the  acts  committed  by  the  several  vessels  which  have  given  rise  to  the  claims 
generically  known  as  the  "Alabama  Claims  :" 

And  whereas  Her  Britannic  Majesty  has  authorized  her  High  Commissioners 
and  Plenipotentiaries  to  express,  in  a  friendly  spirit,  the  regret  felt  by  Her  Maj 
esty's  Government  for  the  escape,  under  whatever  circumstances,  of  the  Ala 
bama  and  other  vessels  from  British  ports,  and  for  the  depredations  committed 
by  those  vessels : 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the  part 
of  the  United  States,  and  to  provide  for  the  speedy  settlement  of  such  claims, 
which  are  not  admitted  by  Her  Britannic  Majesty's  Government,  the  High  Con 
tracting  Parties  agree  that  all  the  said  claims,  growing  out  of  acts  committed 
by  the  aforesaid  vessels  and  generically  known  as  the  "Alabama  Claims,"  shall 
be  referred  to  a  Tribunal  of  Arbitration  to  be  composed  of  five  Arbitrators,  to  be 
appointed  in  the  following  manner,  that  is  to  say :  One  shall  be  named  by  the 
President  of  the  United  States  ;  one  shall  be  named  by  Her  Britannic  Majesty ; 
His  Majesty  the  King  of  Italy  shall  be  requested  to  name  one ;  the  President 
of  the  Swiss  Confederation  shall  be  requested  to  name  one ;  and  His  Majesty  the 
Emperor  of  Brazil  shall  be  requested  to  name  one. 

In  case  of  the  death,  absence,  or  incapacity  to  serve  of  any  or  either  of  the 
said  Arbitratoi-s,  or,  in  the  event  of  either  of  the  said  Arbitrators  omitting  or 
declining  or  ceasing  to  act  as  such,  the  President  of  the  United  States,  or  Her 
Britannic  Majesty,  or  His  Majesty  the  King  of  Italy,  or  the  President  of  the  Swiss 
Confederation,  or  His  Majesty  the  Emperor  of  Brazil,  as  the  case  may  be,  may 
forthwith  name  another  person  to  act  as  Arbitrator  in  the  place  and  stead  of 
the  Arbitrator  originally  named  by  such  Head  of  a  State. 

And  in  the  event  of  the  refusal  or  omission  for  two  months  after  receipt  of  the 
request  from  either  of  the  High  Contracting  Parties  of  His  Majesty  the  King 
of  Italy,  or  the  President  of  the  Swiss  Confederation,  or  His  Majesty  the  Em 
peror  of  Brazil,  to  name  an  Arbitrator  either  to  fill  the  original  appointment  or 
in  the  place  of  one  who  may  have  died,  be  absent,  or  incapacitated,  or  who  may 


THE  TREATY  OF  WASHINGTON.  259 

omit,  decline,  or  from  any  cause  cease  to  act  as  such  Arbitrator,  His  Majesty 
the  King  of  Sweden  and  Norway  smill  be  requested  to  name  one  or  more  per 
sons,  as  the  case  may  be,  to  act  as  such  Arbitrator  or  Arbitrators. 

ARTICLE  II. 

The  Arbitrators  shall  meet  at  Geneva,  in  Switzerland,  at  the  earliest  conven 
ient  day  after  they  shall  have  been  named,  and  shall  proceed  impartially  and 
carefully  to  examine  and  decide  all  questions  that  shall  be  laid  before  them  on 
the  part  of  the  Governments  of  the  United  States  and  Her  Britannic  Majesty  re 
spectively.  All  questions  considered  by  the  Tribunal,  including  the  final  award, 
shall  be  decided  by  a  majority  of  all  the  Arbitrators. 

Each  of  the  High  Contracting  Parties  shall  also  name  one  person  to  attend 
tb.3  Tribunal  as  its  agent  to  represent  it  generally  in  all  matters  connected  with 
the  arbitration. 

ARTICLE  IIL 

The  written  or  printed  case  of  each  of  the  two  Parties,  accompanied  by  the 
documents,  the  official  correspondence,  and  other  evidence  on  which  each  relies, 
shall  be  delivered  in  duplicate  to  each  of  the  Arbitrators  and  to  the  agent  of 
the  other  Party  as  soon  as  may  be  after  the  organization  of  the  Tribunal,  but 
within  a  period  not  exceeding  six  months  from  the  date  of  the  exchange  of  the 
ratifications  of  this  Treaty. 

ARTICLE  IV. 

Within  four  months  after  the  delivery  on  both  sides  of  the  written  or  printed 
case,  either  Party  may,  in  like  manner,  deliver  in  duplicate  to  each  of  the  said 
Arbitrators,  and  to  the  agent  of  the  other  Party,  a  counter-case,  and  additional 
documents,  correspondence,  and  evidence,  in  reply  to  the  case,  documents,  corre 
spondence,  and  evidence  so  presented  by  the  other  Party. 

The  Arbitrators  may,  however,  extend  the  time  for  delivering  such  counter- 
case,  documents,  correspondence,  and  evidence,  when,  in  their  judgment,  it  be 
comes  necessary,  in  consequence  of  the  distance  of  the  place  from  which  the  evi 
dence  to  be  presented  is  to  be  procured. 

If  in  the  case  submitted  to  the  Arbitrators  either  Party  shall  have  specified 
or  alluded  to  any  report  or  document  in  its  own  exclusive  possession  without  an 
nexing  a  copy,  such  Party  shall  be  bound,  if  the  other  Party  thinks  proper  to 
apply  for  it,  to  furnish  that  Party  with  a  copy  thereof;  and  either  Party  may 
call  upon  the  other,  through  the  Arbitrators,  to  produce  the  originals  or  certified 
copies  of  any  papers  adduced  as  evidence,  giving  in  each  instance  such  reason 
able  notice  as  the  Arbitrators  may  require. 

ARTICLE  V. 

It  shall  be  the  duty  of  the  agent  of  each  Party,  within  two  months  after  the 
expiration  of  the  time  limited  for  the  delivery  of  the  counter-case  on  both  sides, 


2GO  APPENDIX. 

to  deliver  in  duplicate  to  each  of  the  said  Arbitrators  and  to  the  agent  of  the 
other  party  a  written  or  printed  argument  showing  the  points  and  referring  to 
the  evidence  upon  which  his  Government  relies  ;  and  the  Arbitrators  may,  if 
they  desire  further  elucidation  with  regard  to  any  point,  require  a  written  or 
printed  statement  or  argument,  or  oral  argument  by  counsel  upon  it ;  but  in  such 
case  the  other  Party  shall  be  entitled  to  reply  either  orally  or  in  writing,  as  the 
case  may  be. 

ARTICLE  VI. 

In  deciding  the  matters  submitted  to  the  Arbitrators,  they  shall  be  governed 
by  the  following  three  rules,  which  are  agreed  upon  by  the  High  Contracting 
Parties  as  rule~>  to  be  taken  as  applicable  to  the  case,  and  by  such  "principles  of 
International  Law  not  inconsistent  therewith  as  the  Arbitrators  shall  determine 
to  have  been  applicable  to  the  case. 

RULES. 

A  neutral  Government  is  bound- 
First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or  equipping, 
within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable  ground  to  believe  is 
intended  to  cruise  or  to  carry  on  war  against  a  Power  with  which  it  is  at 
peace ;  and  also  to  use  like  diligence  to  prevent  the  departure  from  its  jurisdic 
tion  of  any  vessel  intended  to  cruise  or  carry  on  war  as  above,  such  vessel  hav 
ing  been  specially  adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to  war 
like  use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use  of  i'ts  ports  or 
waters  as  the  base  of  naval  operations  against  the  other,  or  for  the  purpose  of 
the  renewal  or  augmentation  of  military  supplies  or  arms,  or  the  recruitment  of 
men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters,  and,  as  to  all 
persons  within  its  jurisdiction,  to  prevent  any  violation  of  the  foregoing  obliga 
tions  and*  duties. 

Her  Britannic  Majesty  has  commanded  her  High  Commissioners  and  Pleni 
potentiaries  to  declare  that  Her  Majesty's  Government  can  not  assent  to  the 
foregoing  rules  as  a  statement  of  principles  of  International  Law  which  were 
in  force  at  the  time  when  the  claims  mentioned  in  Article  I.  arose ;  but  that 
Her  Majesty's  Government,  in  order  to  evince  its  desire  of  strengthening  the 
friendly  relations  between  the  two  countries  and  of  making  satisfactory  provis 
ion  for  the  future,  agrees  that,  in  deciding  the  questions  between  the  two  coun 
tries  arising  out  of  those  claims,  the  Arbitrators  should  assume  that  Her  Maj 
esty's  Government  had  undertaken  to  act  upon  the  principles  set  forth  in  these 
rules. 

And  the  High  Contracting  Parties  agree  to  observe  these  rules  as  between 
themselves  in  future,  and  to  bring  them  to  the  knowledge  of  other  maritime 
Powers,  and  to  invite  them  to  accede  to  them. 


THE   TEEATY  OF  WASHINGTON.  261 

ARTICLE  VII. 

The  decision  of  the  Tribunal  shall,  if  possible,  be  made  within  three  months 
from  the  close  of  the  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  and  shall  be  signed  by  the  Arbitrators 
who  may  assent  to  it. 

The  said  Tribunal  shall  first  determine  as  to  each  vessel  separately  whether 
Great  Britain  has,  by  any  act  or  omission,  failed  to  fulfill  any  of  the  duties  set 
forth  in  the  foregoing  three  rules,  or  recognized  by  the  principles  of  Internation 
al  Law  not  inconsistent  with  such  rules,  and  shall  certify  such  fact  as  to  each 
of  the  said  vessels.  In  case  the  Tribunal  find  that  Great  Britain  has  failed  to 
fulfill  any  duty  or  duties  as  aforesaid,  it  may,  if  it  think  proper,  pr  reed  to  award 
a  sura  in  gross  to  be  paid  by  Great  Britain  to  the  United  States  for  all  the 
claims  referred  to  it ;  and  in  such  case  the  gross  sum  so  awarded  shall  be  paid 
in  coin  by  the  Government  of  Great  Britain  to  the  Government  of  the  United 
States,  at  Washington,  within  twelve  months  after  the  date  of  the  award. 

The  award  shall  be  in  duplicate,  one  copy  whereof  shall  be  delivered  to  the 
agent  of  the  United  States  for  his  Government,  and  the  other  copy  shall  be  de 
livered  to  the  agent  of  Great  Britain  for  his  Government. 


ARTICLE  VIII. 

Each  Government  shall  pay  its  own  agent,  and  provide  for  the  proper  remu 
neration  of  the  counsel  employed  by  it  and  of  the  Arbitrator  appointed  by  it,  and 
for  the  expense  of  preparing  and  submitting  its  case  to  the  Tribunal.  All  other 
expenses  connected  with  the  arbitration  shall  be  defrayed  by  the  two  Govern 
ments  in  equal  moieties. 

ARTICLE  IX. 

The  Arbitrators  shall  keep  an  accurate  record  of  their  proceedings,  and  may 
appoint  and  employ  the  necessary  officers  to  assist  them. 


ARTICLE  X. 

In  case  the  Tribunal  finds  that  Great  Britain  has  failed  to  fulfill  any  duty  or 
duties  as  aforesaid,  and  does  not  award  a  sum  -in  gross,  the  High  Contracting 
Parties  agree  that  a 'Board  of  Assessors  shall  be  appointed  to  ascertain  and  de 
termine  what  claims  are  valid,  and  what  amount  or  amounts  shall  be  paid  by 
Great  Britain  to  the  United  States  on  account  of  the  liability  arising  from 
such  failure,  as  to  each  vessel,  according  to  the  extent  of  such  liability  as  de 
cided  by  the  Arbitrators. 

The  Board  of  Assessors  shall  be  constituted  as  follows  :  One  member  there 
of  shall  be  named  by  the  President  of  the  United  States,  one  member  thereof 
shall  be  named  by  Her  Britannic  Majesty,  and  one  member  thereof  shall  be 


262  APPENDIX. 

named  by  the  Representative  at  Washington  of  His  Majesty  the  King  of  Italy  -, 
and  in  case  of  a  vacancy  happening  from  any  cause,  it  shall  be  filled  in  the 
same  manner  in  which  the  original  appointment  was  made. 

As  soon  as  possible  after  such  nominations  the  Board  of  Assessors  shall  be 
organized  in  Washington,  with  power  to  hold  their  sittings  there,  or  in  New 
York,  or  in  Boston.  The  members  thereof  shall  severally  subscribe  a  solemn 
declaration  that  they  will  impartially  and  carefully  examine  and  decide,  to  the 
best  of  their  judgment  and  according  to  justice  and  equity,  all  matters  submit 
ted  to  them,  and  shall  forthwith  proceed,  under  such  rules  and  regulations  as 
they  may  prescribe,  to  the  investigation  of  the  claims  which  shall  be  presented 
to  them  by  the  Government  of  the  United  States,  and  shall  examine  and  de 
cide  upon  them  in  such  order  and  manner  as  they  may  think  proper,  but  upon 
such  evidence  or  information  only  as  shall  be  furnished  by  or  on  behalf  of  the 
Governments  of  the  United  States  and  of  Great  Britain  respectively.  They 
shall  be  bound  to  hear  on  each  separate  claim,  if  required,  one  person  on  be 
half  of  each  Government,  as  counsel  or  agent.  A  majority  of  the  Assessors  in 
each  case  shall  be  sufficient  for  a  decision. 

The  decision  of  the  Assessors  shall  be  given  upon  each  claim  in  writing,  and 
shall  be  signed  by  them  respectively  and  dated. 

Every  claim  shall  be  presented  to  the  Assessors  within  six  months  from  the 
day  of  their  first  meeting  ;  but  they  may,  for  good  cause  shown,  extend  the  time 
for  the  presentation  of  any  claim  to  a  further  period  not  exceeding  three  months. 

The  Assessors  shall  report  to  each  Government  at  or  before  the  expiration 
of  one  year  from  the  date  of  their  first  meeting  the  amount  of  claims  decided 
by  them  up  to  the  date  of  such  report ;  if  further  claims  then  remain  undecided, 
they  shall  make  a  further  report  at  or  before  the  expiration  of  two  years  from 
the  date  of  such  first  meeting;  and  in  case  any  claims  remain  undetermined  at 
that  time,  they  shall  make  a  final  report  within  a  further  period  of  six  months. 

The  report  or  reports  shall  be  made  in  duplicate,  and  one  copy  thereof  shall 
be  delivered  to  the  Secretary  of  State  of  the  United  States,  and  one  copy  there 
of  to  the  Representative  of  Her  Britannic  Majesty  at  Washington. 

All  sums  of  money  which  may  be  awarded  under  this  article  shall  be  payable 
at  Washington,  in  coin,  within  twelve  months  after  the  delivery  of  each  report. 

The  Board  of  Assessors  may  employ  such  clerks  as  they  shall  think  neces 
sary. 

The  expenses  of  the  Board  of  Assessors  shall  be  borne  equally  by  the  two 
Governments,  and  paid  from  time  to  time,  as  may  be  found  expedient,  on  the 
production  of  accounts  certified  by  the  Board.  The  remuneration  of  the  As 
sessors  shall  also  be  paid  by  the  two  Governments  in  equal  moieties  in  a  simi 
lar  manner. 

ARTICLE  XI. 

The  High  Contracting  Parties  engage  to  consider  the  result  of  the  proceed 
ings  of  the  Tribunal  of  Arbitration  and  of  the  Board  of  Assessors,  should  such 


THE   TREATY   OF   WASHINGTON.  263 

Board  be  appointed,  as  a  full,  perfect,  and  final  settlement  of  all  the  claims 
hereinbefore  referred  to  ;  and  further  engage  that  every  such  claim,  whether 
the  same  may  or  mav  not  have  been  presented  to  the  notice  of,  made,  prefer 
red,  or  laid  before  the  Tribunal  or  Board,  shall,  from  and  after  the  conclusion 
of  the  proceedings  of  the  Tribunal  or  Board,  be  considered  and  treated  as  fi 
nally  settled,  barred,  and  thenceforth  inadmissible. 

ARTICLE  XII. 

The  High  Contracting  Parties  agree  that  all  claims  on  the  part  of  corpora 
tions,  companies,  or  private  individuals,  citizens  of  the  United  States,  upon  the 
Government  of  Her  Britannic  Majesty,  arising  out  of  acts  committed  against 
the  persons  or  property  of  citizens  of  the  United  States  during  the  period  be 
tween  the  thirteenth  of  April,  eighteen  hundred  and  sixty-one,  and  the  ninth 
of  April,  eighteen  hundred  and  sixty-five,  inclusive,  not  being  claims  growing 
out  of  the  acts  of  the  vessels  referred  to  in  Article  I.  of  this  Treaty,  and  all 
claims,  with  the  like  exception,  on  the  part  of  corporations,  companies,  or  pri 
vate  individuals,  subjects  of  Her  Britannic  Majesty,  upon  the  Government  of 
the  United  States,  arising  out  of  acts  committed  against  the  persons  or  prop 
erty  of  subjects  of  Her  Britannic  Majesty  during  the  same  period,  which  may 
have  been  presented  to  either  Government  for  its  interposition  with  the  other, 
and  which  yet  remain  unsettled,  as  well  us  any  other  such  claims  which  may  be 
presented  within  the  time  specified  in  Article  XIV.  of  this  Treaty,  shall  be  re 
ferred  to  three  Commissioners,  to  be  appointed  in  the  following  manner,  that  is 
to  say:  One  Commissioner  shall  be  named  by  the  President  of  the  United 
States,  one  by  Her  Britannic  Majesty,  and  a  third  by  the  President  of  the 
United  States  and  Her  Britannic  Majesty  conjointly ;  and  in  case  the  third 
Commissioner  shall  not  have  been  so  named  within  a  period  of  three  months 
from  the  date  of  the  exchange  of  the  ratifications  of  this  Treaty,  then  the 
third  Commissioner  shall  be  named  by  the  Kepresentative  at  Washington 
of  His  Majesty  the  King  of  Spain.  In  case  of  the  death,  absence,  or  inca 
pacity  of  any  Commissioner,  or  in  the  event  of  any  Commissioner  omitting 
or  ceasing  to  act,  the  vacancy  shall  be  filled  in  the  manner  hereinbefore  pro 
vided  for  making  the  original  appointment ;  the  period  of  three  months  in  case 
of  such  substitution  being  calculated  from  the  date  of  the  happening  of  the 
vacancy. 

The  Commissioners  so  named  shall  meet  at  Washington  at  the  earliest  con 
venient  period  after  they  have  been  respectively  named ;  and  shall,  before  pro 
ceeding  to  any  business,  make  and  subscribe  a  solemn  declaration  that  they 
will  impartially  and  carefully  examine  and  decide,  to  the  best  of  their  judgment, 
and  according  to  justice  and  equity,  all  such  claims  as  shall  be  laid  before  them 
on  the  part  of  the  Governments  of  the  United  States  and  of  Her  Britannic  Maj 
esty,  respectively  ;  and  such  declaration  shall  be  entered  on  the  record  of  their 
proceedings. 


264  APPENDIX. 

ARTICLE  XIII. 

The  Commissioners  shall  then  forthwith  proceed  to  the  investigation  of  the 
claims  which  shall  be  presented  to  them.  They  shall  investigate  and  decide 
such  claims  in  such  order  and  such  manner  as  they  may  think  proper,  but  upon 
such  evidence  or  information  only  as  shall  be  furnished  by  or  on  behalf  of  the 
respective  Governments.  They  shall  be  bound  to  receive  and  consider  all  writ 
ten  documents  or  statements  which  may  be  presented  to  them  by  or  on  behalf 
of  the  respective  Governments  in  support  of,  or  in  answer  to,  any  claim,  and  to 
hear,  if  required,  one  person  on  each  side,  on  behalf  of  each  Government,  as 
counsel  or  agent  for  such  Government,  on  each  and  every  separate  claim.  A 
majority  of  the  Commissioners  shall  be  sufficient  for  an  award  in  each  case. 
The  award  shall  be  given  upon  each  claim  in  writing,  and  shall  be  signed  by 
the  Commissioners  assenting  to  it.  It  shall  be  competent  for  each  Government 
to  name  one  person  to  attend  the  Commissioners  as  its  agent,  to  present  and 
support  claims  on  its  behalf,  and  to  answer  claims  made  upon  it,  and  to  repre 
sent  it  generally  in  all  matters  connected  with  the  investigation  and  decision 
thereof. 

The  High  Contracting  Parties  hereby  engage  to  consider  the  decision  of  the 
Commissioners  as  absolutely  final  and  conclusive  upon  each  claim  decided  upon 
by  them,  and  to  give  full  effect  to  such  decisions  without  any  objection,  eva 
sion,  or  delay  whatsoever. 

ARTICLE  XIV.  , 

Every  claim  shall  be  presented  to  the  Commissioners  within  six  months  from 
the  day  of  their  first  meeting,  unless  in  any  case  where  reasons  for  delay  shall 
be  established  to  the  satisfaction  of  the  Commissioners,  and  then,  and  in  any 
such  case,  the  period  for  presenting  the  claim  may  be  extended  by  them  to  any 
time  not  exceeding  three  months  longer. 

The  Commissioners  shall  be  bound  to  examine  and  decide  upon  every  claim 
within  two  years  from  the  day  of  their  first  meeting.  It  shall  be  competent 
for  the  Commissioners  to  decide  in  each  case  whether  any  claim  has  or  has  not 
been  duly  made,  preferred,  and  laid  before  them,  either  wholly  or  to  any  and 
what  extent,  according  to  the  true  intent  and  meaning  of  this  Treaty. 

ARTICLE  XV. 

All  sums  of  money  which  may  be  awarded  by  the  Commissioners  on  account 
of  any  claim  shall  be  paid  by  the  one  Government  to  the  other,  as  the  case  may 
be,  within  twelve  months  after  the  date  of  the  final  award,  without  interest,  and 
without  any  deduction  save  as  specified  in  Article  XVI.  of  this  Treaty. 

ARTICLE  XVI. 

The  Commissioners  shall  keep  an  accurate  record  and  correct  minutes  or 
notes  of  all  their  proceedings,  with  the  dates  thereof,  and  may  appoint  and  em- 


THE   TREATY   OF  WASHINGTON.  265 

ploy  a  secretary,  and  any  other  necessary  officer  or  officers,  to  assist  them  in 
the  transaction  of  the  business  which  may  come  before  them. 

Each  Government  shall  pay  its  own  Commissioner  and  agent  or  counsel. 
All  other  expenses  shall  be  defrayed  by  the  two  Governments  in  equal  moieties. 

The  whole  expenses  of  the  Commission,  including  contingent  expenses,  shall 
be  defrayed  by  a  ratable  deduction  on  the  amount  of  the  sums  awarded  by  the 
Commissioners,  provided  always  that  such  deduction  shall  not  exceed  the  rate 
of  five  per  cent,  on  the  sums  so  awarded. 


ARTICLE  XVII. 

The  High  Contracting  Parties  engage  to  consider  the  result  of  the  proceed 
ings  of  this  Commission  as  a  full,  perfect,  and  final  settlement  of  all  such  claims 
as  are  mentioned  in  Article  XII.  of  this  Treaty  upon  either  Government ;  and 
further  engage  that  every  such  claim,  whether  or  not  the  same  may  have  been 
presented  to  the  notice  of,  made,  preferred,  or  laid  before  the  said  Commission, 
shall,  from  and  after  the  conclusion  of  the  proceedings  of  the  said  Commission, 
be  considered  and  treated  as  finally  settled,  barred,  and  thenceforth  inadmis 
sible. 

ARTICLE  XVIII. 

It  is  agreed  by  the  High  Contracting  Parties  that,  in  addition  to  the  liberty 
secured  to  the  United  States  fishermen  by  the  Convention  between  the  United 
States  and-Great  Britain,  signed  at  London  on  the  20th  day  of  October,  1818, 
of  taking,  curing,  and  drying  fish  on  certain  coasts  of  the  British  North  Amer 
ican  Colonies  therein  defined,  the  inhabitants  of  the  United  States  shall  have, 
in  common  with  the  subjects  of  Her  Britannic  Majesty,  the  liberty,  for  the  term 
of  years  mentioned  in  Article  XXXIII.  of  this  Treaty,  to  take  fish  of  every 
kind,  except  shell-fish,  on  the  sea-coasts  and  shores,  and  in  the  bays,  harbors, 
and  creeks,  of  the  Provinces  of  Quebec,  Nova  Scotia,  and  New  Brunswick,  and 
the  Colony  of  Prince  Edward's  Island,  and  of  the  several  islands  thereunto  ad 
jacent,  without  being  restricted  to  any  distance  from  the  shore,  with  permission 
to  land  upon  the  said  coasts  and  shores  and  islands,  and  also  upon  the  Magda 
len  Islands,  for  the  purpose  of  drying  their  nets  and  curing  their  fish ;  provided 
that,  in  so  doing,  they  do  not  interfere  with  the  rights  of  private  property,  or 
with  British  fishermen  in  the  peaceable  use  of  any  part  of  the  said  coasts  in 
their  occupancy  for  the  same  purpose. 

It  is  understood  that  the  above-mentioned  liberty  applies  solely  to  the  sea 
fishery,  and  that  the  salmon  and  shad  fisheries,  and  all  other  fisheries  in  rivers 
and  the  mouths  of  rivers,  are  hereby  reserved  exclusively  for  British  fishermen. 

ARTICLE  XIX. 

It  is  agreed  by  the  High  Contracting  Parties  that  British  subjects  shall  have, 
in  common  with  the  citizens  of  the  United  States,  the  liberty,  for  the  term  of 


266  APPENDIX. 

years  mentioned  in  Article  XXXIII.  of  this  Treaty,  to  take  fish  of  every  kind, 
except  shell-fish,  on  the  eastern  sea-coasts  and  shores  of  the  United  States 
north  of  the  thirty-ninth  parallel  of  north  latitude,  and  on  the  shores  of  the  sev 
eral  islands  thereunto  adjacent,  and  in  the  bays,  harbors,  and  creeks  of  the 
said  sea-coasts  and  shores  of  the  United  States  and  of  the  said  islands,  without 
being  restricted  to  any  distance  from  the  shore,  Avith  permission  to  land  upon 
the  said  coasts  of  the  United  States  and  of  the  islands  aforesaid,  for  the  pur 
pose  of  drying  their  nets  and  curing  their  fish  ;  provided  that,  in  so  doing,  they 
do  not  interfere  with  the  rights  of  private  property,  or  with  the  fishermen  of  the 
United  States  in  the  peaceable  use  of  any  part  of  the  said  coasts  in  their  occu 
pancy  for  the  same  purpose. 

It  is  understood  that  the  above-mentioned  liberty  applies  solely  to  the  sea 
fishery,  and  that  salmon  and  shad  fisheries,  and  all  other  fisheries  in  rivers  and 
mouths  of  rivers,  are  hereby  reserved  exclusively  for  fishermen  of  the  United 
States. 

ARTICLE  XX. 

It  is  agreed  that  the  places  designated  by  the  Commissioners  appointed  un 
der  the  First  Article  of  the  Treaty  between  the  United  States  and  Great  Britain, 
concluded  at  Washington  on  the  5th  of  June,  1854,  upon  the  coasts  of  Her  Bri 
tannic  Majesty's  Dominions  and  the  United  States,  as  places  reserved  from  the 
common  right  of  fishing  under  that  Treaty,  shall  be  regarded  as  in  like  manner 
reserved  from  the  common  right  of  fishing  under  the  preceding  articles.  In 
case  any  question  should  arise  between  the  Governments  of  the  United  States 
and  of  Her  Britannic  Majesty  as  to  the  common  right  of  fishing  in  places  not 
thus  designated  as  reserved,  it  is  agreed  that  a  Commission  shall  be  appointed 
to  designate  such  places,  and  shall  be  constituted  in  the  same  manner,  and  have 
the  same  powers,  duties,  and  authority  as  the  Commission  appointed  under  the 
said  First  Article  of  the  Treaty  of  the  5th  of  June,  1854. 


ARTICLE  XXI. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII.  of  this 
Treaty,  fish-oil  and  fish  of  all  kinds  [except  fish  of  the  inland  lakes,  and  of  the 
rivers  falling  into  them,  and  except  fish  preserved  in  oil],  being  the  produce  of 
the  fisheries  of  the  United  States,  or  of  the  Dominion  of  Canada,  or  of  Prince 
Edward's  Island,  shall  be  admitted  into  each  country,  respectively,  free  of  duty. 


ARTICLE  XXII. 

Inasmuch  as  it  is  asserted  by  the  Government  of  Her  Britannic  Majesty  that 
the  privileges  accorded  to  the  citizens  of  the  United  States  under  Article  XVIII. 
of  this  Treaty  are  of  greater  value  than  those  accorded  by  Articles  XIX.  and 
XXI.  of  this  Treaty  to  the  subjects  of  Her  Britannic  Majesty,  and  this  assertion 


THE   TREATY   OF  WASHINGTON.  267 

is  not  admitted  by  the  Government  of  the  United  States,  it  is  further  agreed 
that  Commissioners  shall  be  appointed  to  determine,  having  regard  to  the  privi 
leges  accorded  by  the  United  States  to  the  subjects  of  Her  Britannic  Majesty,  as 
stated  in  Articles  XIX.  and  XXI.  of  this  Treaty,  the  amount  of  any  compensa 
tion  which,  in  their  opinion,  ought  to  be  paid  by  the  Government  of. the  United 
States  to  the  Government  of  Her  Britannic  Majesty  in  return  for  the  privileges 
accorded  to  the  citizens  of  the  United  States  under  Article  XVIII.  of  this 
Treaty ;  and  that  any  sum  of  money  which  the  said  Commissioners  may  so 
award  shall  be  paid  by  the  United  States  Government,  in  a  gross  sum,  within 
twelve  months  after  such  award  shall  have  been  given. 


ARTICLE  XXIII. 

The  Commissioners  referred  to  in  the  preceding  article  shall  be  appointed. in 
the  following  manner,  that  is  to  say  :  One  Commissioner  shall  be  named  by  the 
President  of  the  United  States,  one  by  Her  Britannic  Majesty,  and  a  third  by 
the  President  of  the  United  States  and  Her  Britannic  Majesty  conjointly ;  and 
in  case  the  third  Commissioner  shall  not  have  been  so  named  within  a  period 
of  three  months  from  the  date  when  this  article  shall  take  effect,  then  the  third 
Commissioner  shall  be  named  by  the  Representative  at  London  of  His  Majesty 
the  Emperor  of  Austria  and  King  of  Hungary.  In  case  of  the  death,  absence, 
or  incapacity  of  any  Commissioner,  or  in  the  event  of  any  Commissioner  omitting 
or  ceasing  to  act,  the  vacancy  shall  be  filled  in  the  manner  hereinbefore  pro 
vided  for  making  the  original  appointment,  the  period  of  three  months  in  case  of 
such  substitution  being  calculated  from  the  date  of  the  happening  of  the  vacancy. 

The  Commissioners  so  named  shall  meet  in  the  City  of  Halifax,  in  the  Prov 
ince  of  Nova  Scotia,  at  the  earliest  convenient  period  after  they  have  been  re 
spectively  named,  and  shall,  before  proceeding  to  any  business,  make  and  sub 
scribe  a  solemn  declaration  that  they  will  impartially  and  carefully  examine 
and  decide  the  matters  referred  to  them  to  the  best  of  their  judgment,  and  ac 
cording  to  justice  and  equity ;  and  such  declaration  shall  be  entered  on  the 
record  of  their  proceedings. 

Each  of  the  High  Contracting  Parties  shall  also  name  one  person  to  attend 
the  Commission  as  its  agent,  to  represent  it  generally  in  all  matters  connected 
with  the  Commission. 

ARTICLE  XXIV. 

The  proceedings  shall  be  conducted  in  such  order  as  the  Commissioners  ap 
pointed  under  Articles  XXII.  and  XXIII.  of  this  Treaty  shall  determine.  They 
shall  be  bound  to  receive  such  oral  or  written  testimony  as  either  Government 
may  present.  If  either  Party  shall  offer  oral  testimony,  the  other  Party  shall 
have  the  right  of  cross-examination,  under  such  rules  as  the  Commissioners 
shall  prescribe. 

If  in  the  case  submitted  to  the  Commissioners  either  Party  shall  have  sped- 


268  APPENDIX. 

fied  or  alluded  to  any  report  or  document  in  its  own  exclusive  possession,  with 
out  annexing  a  copy,  such  Party  shall  be  bound,  if  the  other  Party  thinks  prop 
er  to  apply  for  it,  to  furnish  that  Party  with  a  copy  thereof;  and  either  Party 
may  call  upon  the  other,  through  the  Commissioners,  to  produce  the  originals 
or  certified  copies  of  any  papers  adduced  as  evidence,  giving  in  each  instance 
such  reasonable  notice  as  the  Commissioners  may  require. 

The  case  on  either  side  shall  be  closed  within  a  period  of  six  months  from 
the  date  of  the  organization  of  the  Commission,  and  the  Commissioners  shall 
be  requested  to  give  their  award  as  soon  as  possible  thereafter.  The  aforesaid 
period  of  six  months  may  be  extended  for  three  months  in  case  of  a  vacancy  oc 
curring  among  the  Commissioners  under  the  circumstances  contemplated  in 
Article  XXIII.  of  this  Treaty. 

ARTICLE  XXV. 

The  Commissioners  shall  keep  an  accurate  record  and  correct  minutes  or 
notes  of  all  their  proceedings,  with  the  dates  thereof,  and  may  appoint  and  em 
ploy  a  secretary,  and  any  other  necessary  officer  or  officers,  to  assist  them  in  the 
transaction  of  the  business  which  may  come  before  ihem. 

Each  of  the  High  Contracting  Parties  shall  pay  its  own  Commissioner  and 
agent  or  counsel ;  all  other  expenses  shall  be  defrayed  by  the  two  Governments 
in  equal  moieties. 

ARTICLE  XXVI. 

The  navigation  of  the  Eiver  St.  Lawrence,  ascending  and  descending,  from 
the  forty-fifth  parallel  of  north  latitude,  where  it  ceases  to  form  the  boundary 
between  the  two  countries,  from,  to,  and  into  the  sea,  shall  forever  remain  free 
and  open  for  the  purposes  of  commerce  to  the  citizens  of  the  United  States,  sub 
ject  to  any  laws  and  regulations  of  Great  Britain,  or  of  the  Dominion  of  Canada, 
not  inconsistent  with  such  privilege  of  free  navigation. 

The  navigation  of  the  Rivers  Yukon,  Porcupine,  and  Stikine,  ascending  and 
descending,  from,  to,  and  into  the  sea,  shall  forever  remain  free  and  open  for  the 
purposes  of  commerce  to  the  subjects  of  Her  Britannic  Majesty  and  to  the  cit 
izens  of  the  United  States,  subject  to  any  laws  and  regulations  of  either  country 
within  its  own  territory  not  inconsistent  with  such  privilege  of  free  navigation. 


ARTICLE  XXVII. 

The  Government  of  Her  Britannic  Majesty  engages  to'  urge  upon  the  Govern 
ment  of  the  Dominion  of  Canada  to  secure  to  the  citizens  of  the  United  States 
the  use  of  the  Welland,  St.  Lawrence,  and  other  canals  in  the  Dominion  on  terms 
of  equality  with  the  inhabitants  of  the  Dominion  ;  and  the  Government  of  the 
United  States  engages  that  the  subjects  of  Her  Britannic  Majesty  shall  enjoy 
the  use  of  the  St.  Clair  Flats'  Canal  on  terms  of  equality  with  the  inhabitants 
of  the  United  States,  and  further  engages  to  urge  upon  the  State  Governments 


THE  TREATY  OF  WASHINGTON.  2C9 

to  secure  to  the  subjects  of  Her  Britannic  Majesty  the  use  of  the  several  State 
canals  connected  with  the  navigation  of  the  lakes  or  rivers  traversed  by  or  con 
tiguous  to  the  boundary-line  between  the  Possessions  of  the  High  Contracting 
Parties,  on  terms  of  equality  with  the  inhabitants  of  the  United  States. 


ARTICLE  XXVIII. 

The  navigation  of  Lake  Michigan  shall  also,  for  the  term  of  years  mentioned 
in  Article  XXXIII.  of  this  Treaty,  be  free  and  open  for  the  purposes  of  com 
merce  to  the  subjects  of  Her  Britannic  Majesty,  subject  to  any  laws  and  reg 
ulations  of  the  United  States  or  of  the  States  bordering  thereon  not  inconsist 
ent  with  such  privilege  of  free  navigation. 


ARTICLE  XXIX. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII.  of  this 
Treaty,  goods,  wares,  or  merchandise  arriving  at  the  ports  of  Xew  York,  Bos 
ton,  and  Portland,  and  any  other  ports  in  the  United  States  which  have  been  or 
may,  from  time  to  time,  be  specially  designated  by  the  President  of  the  United 
States,  and  destined  for  Her  Britannic  Majesty's  Possessions  in  North  Ameri 
ca,  may  be  entered  at  the  proper  custom-house  and  conveyed  in  transit,  with 
out  the  payment  of  duties,  through  the  territory  of  the  United  States,  under  such 
rules,  regulations,  and  conditions  for  the  protection  of  the  revenue  as  the  Gov 
ernment  of  the  United  States  may  from  time  to  time  prescribe :  and,  under  like 
rules,  regulations,  and  conditions,  goods,  wares,  or  merchandise  may  be  con 
veyed  in  transit,  without  the  payment  of  duties,  from  such  Possessions  through 
the  territory  of  the  United  States  for  export  from  the  said  ports  of  the  United 
States. 

It  is  further  agreed  that,  for  the  like  period,  goods,  wares,  or  merchandise 
arriving  at  any  of  the  ports  of  Her  Britannic  Majesty's  Possessions  in  North 
America,  and  destined  for  the  United  States,  may  be  entered  at  the  proper  cus 
tom-house  and  conveyed  in  transit,  without  the  payment  of  duties,  through  the 
said  Possessions,  under  such  rules  and  regulations  and  conditions  for  the  pro 
tection  of  the  revenue  as  the  Governments  of  the  said  Possessions  may  from 
time  to  time  prescribe  ;  and,  under  like  rules,  regulations,  and  conditions,  goods 
wares,  or  merchandise  may  be  conveyed  in  transit,  without  payment  of  duties, 
from  the  United  States  through  the  said  Possessions  to  other  places  in  the 
United  States,  or  for  export  from  ports  in  the  said  Possessions. 

ARTICLE  XXX. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII.  <"f 
this  Treaty,  subjects  of  Her  Britannic  Majesty  may  carry  in  British  vessels, 
without  payment  of  duty,  goods,  wares,  or  merchandise  from  one  port  or  place 


270  APPENDIX. 

within  the  territory  of  the  United  States  upon  the  St.  Lawrence,  the  Great 
Lakes,  and  the  rivers  connecting  the  same,  to  another  port  or  place  within  the 
territory  of  the  United  States  as  aforesaid :  Provided,  that  a  portion  of  such 
transportation  is  made  through  the  Dominion  of  Canada  by  laud  carriage  and 
in  bond,  under  such  rules  and  regulations  as  may  be  agreed  upon  between 
the  Government  of  Her  Britannic  Majesty  and  the  Government  of  the  United 
States. 

Citizens  of  the  United  States  may  for  the  like  period  carry  in  United  States 
vessels,  without  payment  of  duty,  goods,  wares,  or  merchandise  from  one  port 
or  place  within  the  Possessions  of  Her  Britannic  Majesty  in  North  America  to 
another  port  or  place  within  the  said  Possessions :  Provided,  that  a  portion  of 
such  transportation  is  made  through  the  territory  of  the  United  States  by  land 
carriage  and  in  bond,  under  such  rules  and  regulations  as  may  be  agreed  upon 
between  the  Government  of  the  United  States  and  the  Government  of  Her  Bri 
tannic  Majesty. 

The  Government  of  the  United  States  further  engages  not  to  impose  any  ex 
port  duties  on  goods,  wares,  or  merchandise  carried  under  this  article  through  the 
territory  of  the  United  States  ;  and  Her  Majesty's  Government  engages  to  urge 
the  Parliament  of  the  Dominion  of  Canada  and  the  Legislatures  of  the  other 
Colonies  not  to  impose  any  export  duties  on  goods,  wares,  or  merchandise  car 
ried  under  this  article ;  and  the  Government  of  the  United  States  may,  in  case 
such  export  duties  are  imposed  by  the  Dominion  of  Canada,  suspend,  during  the 
period  that  such  duties  are  imposed,  the  right  of  carrying  granted  under  this 
article  in  favor  of  the  subjects  of  Her  Britannic  Majesty. 

The  Government  of  the  United  States  may  suspend  the  right  of  carrying 
granted  in  favor  of  the  subjects  of  Her  Britannic  Majesty  under  this  article,  in 
case  the  Dominion  of  Canada  should  at  any  time  deprive  the  citizens  of  the 
United  States  of  the  use  of  the  canals  in  the  said  Dominion  on  terms  of  equal 
ity  with  the  inhabitants  of  the  Dominion,  as  provided  in  Article  XXVII. 


ARTICLE  XXXI. 

The  Government  of  Her  Britannic  Majesty  further  engages  to  urge  upon  the 
Parliament  of  the  Dominion  of  Canada  and  the  Legislature  of  New  Brunswick 
that  no  export  duty,  or  other  duty,  shall  be  levied  on  lumber  or  timber  of  any 
kind  cut  on  that  portion  of  the  American,  territory  in  the  State  of  Maine  watered 
by  the  River  St.  John  and  its  tributaries,  and  floated  down  that  river  to  the 
sea,  when  the  same  is  shipped  to  the  United  States  from  the  Province  of  New 
Brunswick.  And,  in  case  any  such  export  or  other  duty  continues  to  be  levied 
after  the  expiration  of  one  year  from  the  date  of  the  exchange  of  the  ratifica 
tions  of  this  Treaty,  it  is  agreed  that  the  Government  of  the  United  States  may 
suspend  the  right  of  carrying  hereinbefore  granted  under  Article  XXX.  of  this 
Treaty  for  such  period  as  such  export  or  other  duty  may  be  levied. 


THE  TREATY   OF  WASHINGTON.  271 

ARTICLE  XXXII. 

It  is  farther  agreed  that  the  provisions  and  stipulations  of  Articles  XVIII. 
to  XXV.  of  this  Treaty,  inclusive,  shall  extend  to  the  Colony  of  Newfoundland 
so  far  as  they  are  applicable.  But  if  the  Imperial  Parliament,  the  Legislature 
of  Newfoundland,  or  the  Congress  of  the  United  States,  shall  not  embrace  the 
Colony  of  Newfoundland  in  their  laws  enacted  for  carrying  the  foregoing  arti 
cles  into  effect,  then  this  article  shall  be  of  no  effect ;  but  the  omission  to  make 
provision  by  law  to  give  it  effect,  by  either  of  the  legislative  bodies  aforesaid, 
shall  not  in  any  way  impair  any  other  articles  of  this  Treaty. 


ARTICLE  XXXIII. 

The  foregoing  Articles  XVIII.  to  XXV.,  inclusive,  and  Article  XXX.  of 
this  Treaty,  shall  take  effect  as  soon  as  the  laws  required  to  cany  them  Into 
operation  shall  have  been  passed  by  the  Imperial  Parliament  of  Great  Britain, 
by  the  Parliament  of  Canada,  and  by  the  Legislature  of  Prince  Edward's  Isl 
and  on  the  one  hand,  and  by  the  Congress  of  the  United  States  on  the  other. 
Such  assent  having  been  given,  the  said  articles  shall  remain  in  force  for  the 
period  of  ten  years  from  the  date  at  which  they  may  come  into  operation ;  and 
further  until  the  expiration  of  two  years  after  either  of  the  High  Contracting 
Parties  shall  have  given  notice  to  the  other  of  its  wish  to  terminate  the  same ; 
each  of  the  High  Contracting  Parties  being  at  liberty  to  give  such  notice  to  the 
other  at  the  end  of  the  said  period  of  ten  years  or  at  any  time  afterward. 


ARTICLE  XXXIV. 

Whereas  it  was  stipulated  by  Article  I.  of  the  Treaty  concluded  at  Washing 
ton  on  the  loth  of  June,  1846,  between  the  United  States  and  Her  Britannic 
Majesty,  that  the  line  of  boundary  between  the  territories  of  t-he  United  States 
and  those  of  Her  Britannic  Majesty,  from  the  point  on  the  forty-ninth  parallel 
of  north  latitude  up  to  which  it  had  already  been  ascertained,  should  be  con 
tinued  westward  along  the  said  parallel  of  north  latitude  "  to  the  middle  of  the 
channel  which  separates  the  continent  from  Vancouver's  Island,  and  thence 
southerly,  through  the  middle  of  the  said  channel  and  of  Fuca  Straits,  to  the 
Pacific  Ocean;"  and  whereas  the  Commissioners  appointed  by  the  two  High 
Contracting  Parties  to  determine  that  portion  of  the  boundary  which  runs 
southerly  through  the  middle  of  the  channel  aforesaid  were  unable  to  agree 
upon  the  same ;  and  whereas  the  Government  of  Her  Britannic  Majesty  claims 
that  such  boundary-line  should,  under  the  terms  of  the  Treaty  above  recited, 
be  run  through  the  Rosario  Straits,  and  the  Government  of  the  United  States 
claims  that  it  should  be  run  through  the  Canal  de  Haro,  it  is  agreed  that  the 
respective  claims  of  the  Government  of  the  United  States  and  of  the  Govern 
ment  of  Her  Britannic  Majesty  shall  be  submitted  to  the  arbitration  and  award 


272  APPENDIX. 

of  His  Majesty  the  Emperor  of  Germany,  who,  having  regard  to  the  above- 
mentioned  article  of  the  said  Treaty,  shall  decide  thereupon,  finally  and  with 
out  appeal,  which  of  those  claims  is  most  in  accordance  with  the  true  interpre 
tation  of  the  Treaty  of  June  15, 1846. 


ARTICLE  XXXV. 

The  award  of  His  Majesty  the  Emperor  of  Germany  shall  be  considered  as 
absolutely  final  and  conclusive ;  and  full  effect  shall  be  given  to  such  award 
without  any  objection,  evasion,  or  delay  whatsoever.  Such  decision  shall  be 
given  in  writing  and  dated ;  it  shall  be  in  whatsoever  form  His  Majesty  may 
choose  to  adopt ;  it  shall  be  delivered  to  the  Eepresentatives  or  other  public 
Agents  of  the  United  States  and  of  Great  Britain,  respectively,  who  may  be  actu 
ally  at  Berlin,  and  shall  be  considered  as  operative  from  the  day  of  the  date  of 
the  delivery  thereof. 

ARTICLE  XXXVI. 

The  written  or  printed  case  of  each  of  the  two  Parties,  accompanied  by  the 
evidence  offered  in  support  of  the  same,  shall  be  laid  before  His  Majesty  the 
Emperor  of  Germany  within  six  months  from  the  date  of  the  exchange  of  the 
ratifications  of  this  Treaty,  and  a  copy  of  such  case  and  evidence  shall  be  com 
municated  by  each  Party  to  the  other,  through  their  respective  Eepresentatives 
at  Berlin. 

The  High  Contracting  Parties  may  include  in  the  evidence  to  be  considered 
by  the  Arbitrator  such  documents,  official  correspondence,  and  other  official  or 
public  statements  bearing  on  the  subject  of  the  reference  as  they  may  consider 
necessary  to  the  support  of  their  respective  cases. 

After  the  written  or  printed  case  shall  have  been  communicated  by  each 
Party  to  the  other,  each  Party  shall  have  the  power  of  drawing  up  and  laying 
before  the  Arbitrator  a  second  and  definitive  statement,  if  it  think  fit  to  do  so, 
in  reply  to  the  case  of  the  other  party  so  communicated,  which  definitive  state 
ment  shall  be  so  laid  before  the  Arbitrator,  and  also  be  mutually  communicated 
in  the  same  manner  as  aforesaid,  by  each  Party  to  the  other,  within  six  months 
from  the  date  of  laying  the  first  statement  of  the  case  before  the  Arbitrator. 


ARTICLE  XXXVII. 

If,  in  the  case  submitted  to  the  Arbitrator,  either  Party  shall  specify  or  allude 
to  any  report  or  document  in  its  own  exclusive  possession  without  annexing  a 
copy,  such  Party  shall  be  bound,  if  the  other  Party  thinks  proper  to  apply  for 
it,  to  furnish  that  Party  with  a  copy  thereof,  and  either  Party  may  call  upon 
the  other,  through  the  Arbitrator,  to  produce  the  originals  .or  certified  copies 
of  any  papers  adduced  as  evidence,  giving  in  each  instance  such  reasonable  no 
tice  as  the  Arbitrator  may  require.  And  if  the  Arbitrator  should  desire  fur- 


THE  TREATY  OF  WASHINGTON.  273 

ther  elucidation  or  evidence  with  regard  to  any  point  contained  in  the  state 
ments  laid  before  him,  he  shall  be  at  liberty  to  require  it  from  either  Party,  and 
he  shall  be  at  liberty  to  hear  one  counsel  or  agent  for  each  Party,  in  relation  to 
any  matter,  and  at  such  time,  and  in  such  manner,  as  he  may  think  fit. 


ARTICLE  XXXVIII. 

The  Representatives  or  other  public  Agents  of  the  United  States  and  of 
Great  Britain  at  Berlin,  respectively,  shall  be  considered  as  the  Agents  of  their 
respective  Governments  to  conduct  their  cases  before  the  Arbitrator,  who  shall 
be  requested  to  address  all  his  communications,  and  give  all  his  notices,  to  such 
Representatives  or  other  public  Agents,  who  shall  represent  their  respective 
Governments  generally  in  all  matters  connected  with  the  arbitration. 


ARTICLE  XXXIX. 

It  shall  be  competent  to  the  Arbitrator  to  proceed  in  the  said  arbitration,  and 
all  matters  relating  thereto,  as  and  when  he  shall  see  fit,  either  in  person,  or  by 
a  person  or  persons  named  by  him  for  that  purpose,  either  in  the  presence  or 
absence  of  either  or  both  Agents,  and  either  orally  or  by  written  discussion  or 
otherwise. 

ARTICLE  XL. 

The  Arbitrator  may,  if  he  think  fit,  appoint  a  secretary  or  clerk  for  the 
purposes  of  the  proposed  arbitration,  at  such  rate  of  remuneration  as  he  shall 
think  proper.  This,  and  all  other  expenses  of  and  connected  with  the  said  ar 
bitration,  shall  be  provided  for  as  hereinafter  stipulated. 


ARTICLE  XLI. 

The  Arbitrator  shall  be  requested  to  deliver,  together  with  his  award,  an  ac 
count  of  all  the  costs  and  expenses  which  he  may  have  been  put  to  in  relation 
to  this  matter,  which  shall  forthwith  be  repaid  by  the  two  Governments  in  equal 
moieties. 

ARTICLE  XLII. 

The  Arbitrator  shall  be  requested  to  give  his  award  in  writing  as  early  as 
convenient  after  the  whole  case  on  each  side  shall  have  been  laid  before  him, 
and  to  deliver  one  copy  thereof  to  each  of  the  said  agents. 


ARTICLE  XLIII. 

The  present  Treaty  shall  be  duly  ratified  by  the  President  of  the  United 
States  of  America,  by  and  with  the  advice  and  consent  of  the  Senate  thereof, 

s 


274:  APPENDIX. 

and  by  Her  Britannic  Majesty ;  and  the  ratifications  shall  be  exchanged  either 
at  Washington  or  at  London  within  six  months  from  the  date  hereof,  or  earlier 
if  possible. 

In  faith  whereof,  we,  the  respective  Plenipotentiaries,  have  signed  this  Treaty 
and  have  hereunto  affixed  our  seals. 

Done  in  duplicate  at  Washington  the  eighth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-one. 

[L.  s.]  HAMILTON  FISH. 

[L.  S.]  ROBT.    C.    SCHENCK. 

[L.  s.]  SAMUEL  NELSON. 

[L.  s.]  EBENEZER  ROCKWOOD  HOAR. 

[L.  s.]  GEO.  H.  WILLIAMS. 

[L.  s.]  DE  GREY  &  RIPON. 

[L.  s.]  STAFFORD  II.  NORTHCOTE. 

[L.  s.]  EDWD.  THORNTON. 

[L.  s.]  JOHN  A.  MACDONALD. 

[L.  S.]  MOUNTAGUE   BERNARD. 

And  whereas  the  said  Treaty  has  been  duly  ratified  on  both  parts,  and  the 
respective  ratifications  of  the  same  were  exchanged  in  the  city  of  London,  on 
the  seventeenth  day  of  June,  1871,  by  Robert  C.  Schenck,  Envoy  Extraordinary 
and  Minister  Plenipotentiary  of  the  United  States,  and  Earl  Granville,  Her 
Majesty's  Principal  Secretary  of  State  for  Foreign  Affairs,  on  the  part  of  their 
respective  Governments : 

Now,  therefore,  be  it  known  that  I,  ULYSSES  S.  GRANT,  President  of  the 
United  States  of  America,  have  caused  the  said  Treaty  to  be  made  public,  to 
the  end  that  the  same,  and  every  clause  and  article  thereof,  may  be  observed 
and  fulfilled  with  good  faith  by  the  United  States  and  the  citizens  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  fourth  day  of  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-one,  and  of  the  Inde 
pendence  of  the  United  States  the  ninety-sixth. 

U.  S.  GRANT. 

By  the  President : 

HAMILTON  FISH, 

Secretary  of  State. 


THE  DECISION  AND  AWARD.  275 


DECISION  AND  AWARD 

Made  by  the  Tribunal  of  Arbitration  constituted  by  virtue  of  the  first  Article 
of  the  Treaty  concluded  at  Washington  the  8th  of  May,  1871,  between  Her 
Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
and  the  United  States  of  America. 

Her  Britannic  Majesty  and  the  United  States  of  America  having  agreed  ly 
Article  I.  of  the  Treaty  concluded  and  signed  at  Washington  the  8th  of  May, 
1871,  to  refer  all  the  claims  "generically  known  as  the  Alabama  Claims"  to  a 
Tribunal  of  Arbitration  to  be  composed  of  five  Arbitrators,  named : 
One  by  Her  Britannic  Majesty, 
One  by  the  President  of  the  United  States, 
One  by  His  Majesty  the  King  of  Italy, 
One  by  the  President  of  the  Swiss  Confederation, 
One  by  His  Majesty  the  Emperor  of  Brazil ; 

and 

Her  Britannic  Majesty,  the  President  of  the  United  States,  H.  M.  the  King 
of  Italy,  the  President  of  the  Swiss  Confederation,  and  H.  M.  the  Emperor 
of  Brazil,  having  respectively  named  their  Arbitrators,  to  wit : 
Her  Britannic  Majesty : 

Sir  Alexander  James  Edmund  Cockburn,  Baronet,  a  Member  of  Her  Maj 
esty's  Privy  Council,  Lord  Chief  Justice  of  England ; 
The  President  of  the  United  States  : 
Charles  Francis  Adams,  Esquire  ; 
His  Majesty  the  King  of  Italy  : 

His  Excellency  Count  Frederic  Sclopis  of  Salerano,  a  Knight  of  the  Order 

of  the  Annunciata,  Minister  of  State,  Senator  of  the  Kingdom  of  Italy ; 
The  President  of  the  Swiss  Confederation : 

Mr.  James  Staempfli ; 
His  Majesty  the  Emperor  of  Brazil: 

His  Excellency  Marcos  Antonio  d'Araujo,  Viscount  of  Itajuba,  a  Grandee 
of  the  Empire  of  Brazil,  Member  of  the  Council  of  H.  M.  the  Emperor 
of  Brazil,  and  his  Envoy  Extraordinary  and  Minister  Plenipotentiary  in 
France ; 

And  the  five  Arbitrators  above  named  having  assembled  at  Geneva,  in  Switz 
erland,  in  one  of  the  Chambers  of  the  Hotel  de  Ville,  on  the  15th  of  December, 
1871,  in  conformity  with  the  terms  of  the  Second  Article  of  the  Treaty  of  Wash 
ington  of  the  8th  of  May  of  that  year,  and  having  proceeded  to  the  inspection 


276  APPENDIX. 

and  verification  of  their  respective  powers,  which  were  found  duly  authenticated, 
the  Tribunal  of  Arbitration  was  declared  duly  organized. 

The  Agents  named  by  each  of  the  High  Contracting  Parties,  by  virtue  of  the 
same  Second  Article,  to  wit : 

For  Her  Britannic  Majesty  : 

Charles  Stuart  Aubrey,  Lord  Tenterden,  a  Peer  of  the  United  Kingdom, 
Companion  of  the  Most  Honorable  Order  of  the  Bath,  Assistant  Under 
secretary  of  State  for  Foreign  Affairs ; 

And  for  the  United  States  of  America : 

John  C.  Bancroft  Davis,  Esquire ; 

whose  powers  were  found  likewise  duly  authenticated,  then  delivered  to  each  of 
the  Arbitrators  the  printed  Case  prepared  by  each  of  the  two  Parties,  accompa 
nied  by  the  documents,  the  official  correspondence,  and  other  evidence  on  which 
each  relied,  in  conformity  with  the  terms  of  the  Third  Article  of  the  said  Treaty. 

In  virtue  of  the  decision  made  by  the  Tribunal  at  its  first  session,  the  Coun 
ter-Case,  and  additional  documents,  correspondence,  and  evidence,  referred  to  in 
Article  IV.  of  the  said  Treaty,  were  delivered  by  the  respective  Agents  of  the 
two  Parties  to  the  Secretary  of  the  Tribunal  on  the  15th  of  April,  1872,  at  the 
Chamber  of  Conference,  at  the  Hotel  de  Ville  of  Geneva. 

The  Tribunal,  in  accordance  with  the  vote  of  adjournment  passed  at  their 
second  session,  held  on  the  IGth  of  December,  1871,  reassembled  at  Geneva  on 
the  15th  of  June,  1872  ;  and  the  Agent  of  each  of  the  Parties  duly  delivered  to 
each  of  the  Arbitrators  and  to  the  Agent  of  the  other  Party  the  printed  Argu 
ment  referred  to  in  Article  IV.  of  the  said  Treaty. 

The  Tribunal  having  since  fully  taken  into  their  consideration  the  Treaty,  and 
also  the  cases,  counter-cases,  documents,  evidence,  and  arguments,  and  likewise 
all  other  communications  made  to  them  by  the  two  Parties  during  the  progress 
of  their  sittings,  and  having  impartially  examined  the  same, 

Has  arrived  at  the  decision  embodied  in  the  present  Award : 

Whereas,  having  regard  to  the  Sixth  and  Seventh  Articles  of  the  said  Treaty, 
the  Arbitrators  are  bound  under  the  terms  of  the  said  Sixth  Article, ' '  in  decid 
ing  the  matters  submitted  to  them,  to  be  governed  by  the  three  Rules  therein 
specified,  and  by  such  principles  of  International  Law  not  inconsistent  there 
with  as  the  Arbitrators  shall  determine  to  have  been  applicable  to  the  case ;" 

And  whereas  the  "due  diligence"  referred  to  in  the  first  and  third  of  the 
said  Rules  ought  to  be  exercised  by  neutral  Governments  in  exact  proportion 
to  the  risks  to  which  either  of  the  belligerents  may  be  exposed  from  a  failure  to 
fulfill  the  obligations  of  neutrality  on  their  part ; 

And  whereas  the  circumstances  out  of  which  the  facts  constituting  the  sub 
ject-matter  of  the  present  controversy  arose  were  of  a  nature  to  call  for  the 
exercise  on  the  part  of  Her  Britannic  Majesty's  Government  of  all  possible  so 
licitude  for  the  observance  of  the  rights  and  the  duties  involved  in  the  Procla 
mation  of  Neutrality  issued  by  Her  Majesty  on  the  13th  day  of  May,  1861 ; 

And  whereas  the  effects  of  a  violation  of  neutrality  committed  by  means  of 


THE   DECISION  AND   AWARD.  277 

the  construction,  equipment,  and  armament  of  a  vessel  are  not  done  away  with 
by  any  commission  which  the  Government  of  the  belligerent  Power  benefited 
by  the  violation  of  neutrality  may  afterward  have  granted  to  that  vessel :  and 
the  ultimate  step,  by  which  the  offense  is  completed,  can  not  be  admissible  as 
a  ground  for  the  absolution  of  the  offender ;  nor  can  the  consummation  of  his 
fraud  become  the  means  of  establishing  his  innocence ; 

And  whereas  the  privilege  of  exterritoriality  accorded  to  vessels  of  war  has 
been  admitted  into  the  law  of  nations,  not  as  an  absolute  right,  but  solely  as  a 
proceeding  founded  on  the  principle  of  courtesy  and  mutual  deference  between 
different  nations,  and  therefore  can  never  be  appealed  to  for  the  protection  of 
acts  done  in  violation  of  neutrality ; 

And  whereas  the  absence  of  a  previous  notice  can  not  be  regarded  as  a  fail 
ure  in  any  consideration  required  by  the  law  of  nations  in  those  cases  in  which 
a  vessel  carries  with  it  its  own  condemnation  ; 

And  whereas,  in  order  to  impart  to  any  supplies  of  coal  a  character  incon 
sistent  with  the  second  Rule,  prohibiting  the  use  of  neutral  ports  or  waters  as  a 
base  of  naval  operations  for  a  belligerent,  it  is  necessary  that  the  said  supplies 
should  be  connected  with  special  circumstances  of  time,  of  persons,  or  of  place, 
which  may  combine  to  give  them  such  character ; 

And  whereas,  with  respect  to  the  vessel  called  the  Alabama,  it  clearly  results 
from  all  the  facts  relative  to  the  construction  of  the  ship  at  first  designated  by 
the  "No.  290"  in  the  port  of  Liverpool,  and  its  equipment  and  armament  in 
the  vicinity  of  Terceira,  through  the  agency  of  the  vessels  called  the  Agrippina 
and  the  Bahama  dispatched  from  Great  Britain  to  that  end,  that  the  British 
Government  failed  to  use  due  diligence  in  the  performance  of  its  neutral  obli 
gations  ;  and  especially  that  it  omitted,  notwithstanding  the  warnings  and  offi 
cial  representations  made  by  the  diplomatic  agents  of  the  United  States  during 
the  construction  of  the  said  "No.  290,"  to  take  in  due  time  any  effective  meas 
ures  of  prevention,  and  that  those  orders  which  it  did  give  at  last  for  the  deten 
tion  of  the  vessel  were  issued  so  late  that  their  execution  was  not  practicable ; 

And  whereas,  after  the  escape  of  that  vessel,  the  measures  taken  for  its  pursuit 
and  arrest  were  so  imperfect  as  to  lead  to  no  result,  and  therefore  can  not  be  con 
sidered  sufficient  to  release  Great  Britain  from  the  responsibility  already  incurred ; 

And  whereas,  in  despite  of  the  violations  of  the  neutrality  of  Great  Britain 
committed  by  the  "290,"  this  same  vessel,  later  known  as  the  Confederate  cruiser 
Alabama,  was  on  several  occasions  freely  admitted  into  the  ports  of  Colonies  of 
Great  Britain,  instead  of  being  proceeded  against  as  it  ought  to  have  been  in  any 
and  every  port  within  British  jurisdiction  in  which  it  might  have  been  found  ; 

And  whereas  the  Government  of  Her  Britannic  Majesty  can  not  justify  itself 
for  a  failure  in  due  diligence  on  the  plea  of  the  insufficiency  of  the  legal  means 
of  action  which  it  possessed ; 

Four  of  the  Arbitrators,  for  the  reasons  above  assigned,  and  the  fifth  for  rea 
sons  separately  assigned  by  him,  are  of  opinion, 

That  Great  Britain  has  in  this  case  failed,  bv  omission,  to  fulfill  the  duties 


278  APPENDIX. 

prescribed  in  the  first  and  the  third  of  the  Rules  established  by  the  Sixth  Arti 
cle  of  the  Treaty  of  Washington. 

And  whereas,  with  respect  to  the  vessel  called  the  Florida,  it  results  from 
all  the  facts  relative  to  the  construction  of  the  Oreto  in  the  port  of  Liverpool 
and  to  its  issue  therefrom,  which  facts  failed  to  induce  the  Authorities  in  Great 
Britain  to  resort  to  measures  adequate  to  prevent  the  violation  of  the  neutrality 
of  that  nation,  notwithstanding  the  warnings  and  repeated  representations  of  the 
Agents  of  the  United  States,  that  Her  Majesty's  Government  has  failed  to  use 
due  diligence  to  fulfill  the  duties  of  neutrality ; 

And  whereas  it  likewise  results  from  all  the  facts  relative  to  the  stay  of  the 
Oreto  at  Nassau,  to  her  issue  from  that  port,  to  her  enlistment  of  men,  to  her 
supplies,  and  to  her  armament  with  the  co-operation  of  the  British  vessel  Prince 
Alfred  at  Green  Cay,  that  there  was  negligence  on  the  part  of  the  British  Colo 
nial  Authorities ; 

And  whereas,  notwithstanding  the  violation  of  the  neutrality  of  Great  Britain 
committed  by  the  Oreto,  this  same  vessel,  later  known  as  the  Confederate  cruiser 
Florida,  was  nevertheless  on  several  occasions  freely  admitted  into  the  ports  of 
British  Colonies ; 

And  whereas  the  judicial  acquittal  of  the  Oreto  at  Nassau  can  not  relieve 
Great  Britain  from  the  responsibility  incurred  by  her  under  the  principles  of 
International  Law ;  nor  can  the  fact  of  the  entry  of  the  Florida  into  the  Con 
federate  port  of  Mobile,  and  of  its  stay  there  during  four  months,  extinguish  the 
responsibility  previously  to  that  time  incurred  by  Great  Britain : 
For  these  reasons, 

The  Tribunal,  by  a  majority  of  four  voices  to  one,  is  of  opinion, 

That  Great  Britain  has  in  this  case  failed,  by  omission,  to  fulfill  tjie  duties 
prescribed  in  the  first,  in  the  second,  and  in  the  third  of  the  Rules  established 
by  Article  VI.  of  the  Treaty  of  Washington. 

And  whereas,  with  respect  to  the  vessel  called  the  Shenandoah,  it  results  from 
all  the  facts  relative  to  the  departure  from  London  of  the  merchant  vessel  the 
Sea  King,  and  to  the  transformation  of  that  ship  into  a  Confederate  cruiser 
under  the  name  of  the  Shenandoah,  near  the  island  of  Madeira,  that  the  Gov 
ernment  of  Her  Britannic  Majesty  is  not  chargeable  with  any  failure,  down  to 
that  date,  in  the  use  of  due  diligence  to  fulfill  the  duties  of  neutrality ; 

But  whereas  it  results  from  all  the  facts  connected  with  the  stay  of  the  Shen 
andoah  at  Melbourne,  and  especially  with  the  augmentation  which  the  British 
Government  itself  admits  to  have  been  clandestinely  effected  of  her  force  by  the 
enlistment  of  men  within  that  port,  that  there  was  negligence  on  the  part  of  the 
Authorities  at  that  place : 
For  these  reasons, 

The  Tribunal  is  unanimously  of  opinion, 

That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of 
the  duties  prescribed  by  the  Rules  of  Article  VI.  in  the  Treaty  of  Washington, 
or  by  the  principles  of  International  Law  not  inconsistent  therewith,  in  respect 


THE  DECISION  AXD  AWARD.  279 

to  the  vessel  called  the  Shenandoah,  during  the  period  of  time  anterior  to  her 
entry  into  the  port  of  Melbourne. 

And  by  a  majority  of  three  to  two  voices,  the  Tribunal  declares  that  Great 
Britain  has  failed,  by  omission,  to  fulfill  the  duties  prescribed  by  the  second  and 
third  of  the  Rules  aforesaid,  in  the  case  of  this  same  vessel,  from  and  after  her  en 
try  into  Hobson's  Bay,  and  is  therefore  responsible  for  all  acts  committed  by  that 
vessel  after  her  departure  from  Melbourne  on  the  18th  day  of  February,  1865. 
And  so  far  as  relates  to  the  vessels  called 
The  Tuscaloosa 
(Tender  to  the  Alabama), 
The  Clarence, 
The  Tacony,  and 
The  Archer 

(Tenders  to  the  Florida), 
The  Tribunal  is  unanimously  of  opinion, 

That  such  Tenders  or  auxiliary  vessels,  being  properly  regarded  as  accesso 
ries,  must  necessarily  follow  the  lot  of  their  Principals,  and  be  submitted  to  the 
same  decision  which  applies  to  them  respectively. 
And  so  far  as  relates  to  the  vessel  called  the  Retribution, 
The  Tribunal,  by  a  majority  of  three  to  two  voices,  is  of  opinion, 
That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of 
the  duties  prescribed  by  the  three  Rules  of  Article  VI.  in  the  Treaty  of  Wash 
ington,  or  by  the  principles  of  International  Law  not  inconsistent  therewith. 
And  so  far  as  relates  to  the  vessels  called 
The  Georgia, 
The  Sumter, 
The  Nashville, 
The  Tallahassee,  and 
The  Chickamaugd,  respectively, 
The  Tribunal  is  unanimously  of  opinion, 

That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of 
the  duties  prescribed  by  the  three  Rules  of  Article  VI.  in  the  Treaty  of  Wash 
ington,  or  by  the  principles  of  International  Law  not  inconsistent  therewith. 
And  so  far  as  relates  to  the  vessels  called 
The  Sallie, 
The  Jefferson  Davis, 
The  Music, 
The  Boston,  and 
The  V.  H.  Joy,  respectively, 
The  Tribunal  is  unanimously  of  opinion, 

That  they  ought  to  be  excluded  from  consideration  for  want  of  evidence. 
And  whereas,  so  far  as  relates  to  the  particulars  of  the  indemnity  claimed  by 
the  United  States,  the  costs  of  pursuit  of  the  Confederate  cruisers  are  not,  in 
the  judgment  of  the  Tribunal,  properly  distinguishable  from  the  general  ex 
penses  of  the  war  carried  on  by  the  United  States, 


280  APPENDIX. 

The  Tribunal  is  therefore  of  opinion,  by  a  majority  of  three  to  two  voices, 

That  there  is  no  ground  for  awarding  to  the  United  States  any  sum  by  way 
of  indemnity  under  this  head. 

And  whereas  prospective  earnings  can  not  properly  be  made  the  subject  of 
compensation,  inasmuch  as  they  depend  in  their  nature  upon  future  and  uncer 
tain  contingencies, 

The  Tribunal  is  unanimously  of  opinion, 

That  there  is  no  ground  for  awarding  to  the  United  States  any  sum  by  way 
of  indemnity  under  this  head. 

And  whereas,  in  order  to  arrive  at  an  equitable  compensation  for  the  dam 
ages  which  have  been  sustained,  it  is  necessary  to  set  aside  all  double  claims  for 
the  same  losses,  and  all  claims  for  "gross  freights  "  so  far  as  they  exceed  "net 
freights;" 

And  whereas  it  is  just  and  reasonable  to  allow  interest  at  a  reasonable  rate ; 

And  whereas,  in  accordance  with  the  spirit  and  the  letter  of  the  Treaty  of 
Washington,  it  is  preferable  to  adopt  the  form  of  adjudication  of  a  sum  in  gross, 
rather  than  to  refer  the  subject  of  compensation  for  further  discussion  and  de 
liberation  to  a  Board  of  Assessors,  as  provided  by  Article  X.  of  the  said  Treaty  : 

The  Tribunal,  making  use  of  the  authority  conferred  upon  it  by  Article  VII. 
of  the  said  Treaty,  by  a  majority  of  four  voices  to  one,  awards  to  the  United 
States  the  sum  of  fifteen  millions  five  hundred  thousand  Dollars  in  gold  as  the 
indemnity  to  be  paid  by  Great  Britain  to  the  United  States  for  the  satisfaction 
of  all  the  claims  referred  to  the  consideration  of  the  Tribunal,  conformably  to 
the  provisions  contained  in  Article  VII.  of  the  aforesaid  Treaty. 

And,  in  accordance  with  the  terms  of  Article  XI.  of  the  said  Treaty,  the  Tri 
bunal  declares  that  all  the  claims  referred  to  in  the  Treaty  as  submitted  to  the 
Tribunal  are  hereby  fully,  perfectly,  and  finally  settled. 

Furthermore,  it  declares  that  each  and  every  one  of  the  said  claims,  whether 
the  same  may  or  may  not  have  been  presented  to  the  notice  of,  made,  preferred, 
or  laid  before  the  Tribunal,  shall  henceforth  be  considered  and  treated  as  finally 
settled,  barred,  and  inadmissible. 

In  Testimony  whereof  this  present  Decision  and  Award  has  been  made  in 
duplicate,  and  signed  by  the  Arbitrators  who  have  given  their  assent  thereto, 
the  whole  being  in  exact  conformity  with  the  provisions  of  Article  VII.  of  the 
said  Treaty  of  Washington. 

Made  and  concluded  at  the  Hotel  de  Ville  of  Geneva,  in  Switzerland,  the 
14th  day  of  the  month  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-two. 

(Signed)  C.  F.  ADAMS. 

(Signed)  FREDERIC  SCLOPIS. 

(Signed)  ST^MPFLI. 

(Signed)  Vicomte 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 


This  book  is  due  on  the  last  date  stamped  below,  or 
on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 

i       20JanT60AF 

WECJ'D  M3 

JAN  23  1S5D 

28Wa^HC 

F         L)  LD 

MAY  14  1961 

3jan65lMX 

pprr'p  LD 

JAM       L  »CC     Oi  na; 

JAN    4  65  -2  Pw 

LD  21A-50m-4,'59 
(A1724slO)476B 


General  Library 

University  of  California 

Berkeley 


YB  06359 


UNIVERSITY  OF  CALIFORNIA  LIBRfARY 


*+ 


